Herman v. City of Oconto

• Decision Date: 20 September 1898
• Citation: 100 Wis. 391,76 N.W. 364
• Parties: HERMAN v. CITY OF OCONTO.
• Court: Wisconsin Supreme Court

100 Wis. 391

76 N.W. 364

HERMAN

v.CITY OF OCONTO.

Supreme Court of Wisconsin.

Sept. 20, 1898.

Appeal from circuit court, Brown county; Samuel D. Hastings, Judge.

Action by Henry Herman against the city of Oconto. There was a judgment for plaintiff, and defendant appeals. Reversed.P. H. Lynch and P. H. Martin, for appellant.

Hoyt, Ogden & Olwell, for respondent.

CASSODAY, C. J.

This is an action to recover $17,323.01 for the construction of a sewer for the defendant as per written contract. The contract was made and entered into October 22, 1894, between the defendant and one William Turner, to the effect that Turner thereby agreed to furnish and provide, at his own proper cost and expense, all the necessary materials and labor in conformity with the annexed specifications and plans, and construct the sewers and appurtenances therein mentioned, and complete the work to the satisfaction of the board of public works and the engineer in charge, and in accordance with such specifications and plans, on or before February 25, 1895; that for each and every day such work should remain incomplete after the time so specified Turner should forfeit $25 as liquidated damages. And the defendant therein agreed to pay to Turner, on the 10th day of the month succeeding that in which the work should be done, 75 per cent. of the monthly estimate of the whole amount accruing to Turner during such month, provided that nothing therein contained should be construed to affect any of the rights therein reserved by the board of public works; that it was therein further agreed by Turner that he would accept, at the option of the defendant, in payment for any or all amounts due under the agreement, and at their par or face value, city orders, special assessment certificates against the proper lots, or improvement bonds, as provided in the city charter as adopted from chapter 312, Laws 1893; that such contract was not to be binding until approved by the mayor and common council and countersigned by the comptroller; that such contract was so approved and countersigned; that prior to making such contract the plaintiff, Herman, became obligated and bound to the defendant as surety for the faithful performance of such contract by Turner; that October 27, 1894, Turner duly sold, assigned, transferred, and set over to the plaintiff all sums of money which might then be due or thereafter become due to Turner for doing the work of the construction of the sewers and furnishing the materials therefor, and all rights he might have against the city under the contract, and that the city was, on or about January 31, 1895, duly notified of such assignment; that a tripartite agreement was made July 24, 1895, by and between the defendant city, Turner, and the plaintiff, reciting the contract of October 22, 1894, and the work done thereunder, and the making of the assignment from Turner to the plaintiff, and it was therein agreed by and between the three parties thereto that said contract was then--July 24, 1895--wholly performed by Turner according to the terms and conditions thereof by him to be kept and performed, except as to the time within which the work thereunder was to be completed; that there was due to Turner, and to the plaintiff as his assignee, under and pursuant to the terms of the contract, the sum of $18,099.66, less $776.65, which last sum had been adjusted and agreed upon between the parties as the amount of damages sustained by the city by reason of the failure of Turner to complete the work within the time limited in the contract and the extension thereof theretofore granted by the city, leaving to be paid to Turner, and to the plaintiff as his assignee, in the way and manner provided in the contract, the sum of $17,323.01, which sum was thereby acknowledged to be due under the contract, and payable only at the times and in the manner therein provided, subject to the stay of proceedings in the action of State ex rel. Davis against The City (July 7, 1896); that the plaintiff presented such claim to the common council; that the council disallowed the same; that the plaintiff then appealed from the decision of the council to the circuit court; that after the return on the appeal the circuit court required the plaintiff to file and serve his complaint, and the defendant to serve and file an answer thereto; that, upon the complaint being served and filed, the defendant demurred thereto for the reasons that the court had no jurisdiction of the action or the defendant; that the complaint did not state facts sufficient to constitute a cause of action; that the court thereupon overruled the demurrer, and the defendant then answered the complaint, to the effect that the defendant admitted the allegations of fact set forth in the complaint, and alleged upon information and belief, in effect, that Turner was not, at the time of making the contract, the real party in interest to the contract, but, instead, was permitting the use of his name, and interested in securing the contract for the benefit of one Paul Foley; that Paul Foley and Turner worked and co-operated to secure the contract to be let to and entered into with Turner for the benefit of Foley; that the contract so entered into with Turner was let and secured to Turner by means of fraud, bribery, and corruption in paying to certain members of the alleged board of public works, by and through whom the contract was let and executed, in behalf of the defendant, whose names were to the defendant unknown, large sums of money intended to corrupt and influence the...