Hubbard v. Town of Williamstown

• Decision Date: 06 November 1884
• Citation: 61 Wis. 397,21 N.W. 295
• Parties: HUBBARD v. TOWN OF WILLIAMSTOWN.
• Court: Wisconsin Supreme Court

61 Wis. 397

21 N.W. 295

HUBBARD

v.TOWN OF WILLIAMSTOWN.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Dodge county.

Eli & C. E. Hooker, for appellant.

E. S. Bragg, for respondent.

TAYLOR, J.

This action was brought to recover the purchase price of two abutments to a bridge, which the plaintiff says he sold to the town, and for which the town agreed to pay him the sum of $750. The complaint sets out that the proposition to make such sale to the town was submitted to the electors of the town at a special town meeting called for the purpose of considering the same, and that the electors voted to purchase such abutments, and authorized the supervisors of the town to make such purchase, upon certain conditions, and build a bridge thereon. It then sets out a written contract for the sale of said abutments, made between the plaintiff and one H. A. Lawrence, of the one part, and the town of Williamstown, of the other part, and executed on the part of the town by the supervisors of said town. The complaint further alleges “that the plaintiff and the said Lawrence delivered the said abutments to the said defendant, and the said defendant accepted the same and built a bridge thereon, pursuant to said agreement; and that the said plaintiff and the said H. A. Lawrence performed all the conditions of said bond and said agreement to be by them performed.” It also alleges an assignment by Lawrence to the plaintiff of all his rights and interest under the contract, the presentation of the plaintiff's claim to the town board of auditors of said town on the third day of March, 1883, and their refusal to audit or pay the claim, or any part thereof; and demands judgment.

The town demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and for a defect of parties plaintiff. This last cause of demurrer is not insisted upon in this court. The circuit court sustained the demurrer, with leave to the plaintiff to amend his complaint within 20 days. Upon the failure of the plaintiff to amend his complaint, judgment was entered in favor of the defendant, dismissing the complaint, and for costs. From this judgment the plaintiff appeals to this court.

The demurrer was undoubtedly sustained for the reason that it appears from the facts set up in the complaint that the special town meeting to which the proposition of the plaintiff was submitted, and which it is claimed directed the purchase of the abutments from the plaintiff and the building the bridge thereon,...