Knight v. Town of Ashland

• Decision Date: 02 February 1886
• Citation: 26 N.W. 565,65 Wis. 166
• Parties: KNIGHT v. TOWN OF ASHLAND.
• Court: Wisconsin Supreme Court

65 Wis. 166

26 N.W. 565

KNIGHT

v.TOWN OF ASHLAND.

Supreme Court of Wisconsin.

Filed February 2, 1886.

Appeal from circuit court, Ashland county.

Knight & Hayes, for respondent.

J. J. Miles, for appellant.

TAYLOR, J.

This case has been before this court on appeal heretofore, and the decision of this court will be found in 61 Wis. 233, and 21 N. W. Rep. 65. Upon the former appeal this court held that the respondent was entitled to recover against the town of Ashland the sum of $5,000 upon his contract made with the town of La Pointe, which said last-named town had been abolished previous to the full performance of said contract on the part of said Knight, and its territory attached to the town of Ashland by the board of supervisors of the county of Ashland; and that the liability of said town of La Pointe to said Knight, upon said contract, had been fixed by the order of said board upon said town of Ashland. The evidence in the former case was no stronger in favor of the plaintiff than in the case now before the court on this appeal. On the former appeal this court remarked: “It is not contended by the learned counsel for the respondent (the town of Ashland) but that the plaintiff would have been entitled to recover under his contract the stipulated $5,000, had the town of La Pointe continued in existence, and that town had, without the consent of the plaintiff, discontinued its action against the town of Ashland.” This remark is based upon certain provisions in the contract between Knight and the town of La Pointe. The provisions in said contract upon which this remark was founded are: “That in case no part of said moneys (referring to the moneys to recover which the action was instituted) shall be recovered, then and in that case the said John H. Knight shall not be entitled to receive any compensation for his services.” Another provision reads as follows: “And said supervisors of said town of La Pointe, for and on behalf of said town, hereby agree and covenant to and with the said John H. Knight, his heirs and assigns, that the proceedings commenced and undertaken by him, or the suits and actions at law commenced by the said John H. Knight, to recover the aforesaid moneys, or any part thereof, shall not be discontinued, suspended, interrupted, or prejudiced in any manner by said town of La Pointe, or by the supervisors thereof, without the consent of the said John H. Knight, his heirs and assigns; and it is further agreed and covenanted to and with the said John H. Knight, his heirs and assigns, by the said supervisors of said town of La Pointe, * * * that if said proceedings, suits, and actions shall in any manner be prejudiced, interrupted, suspended, or discontinued, or the matters therein involved settled or compromised by the said town of La Pointe, or by any officers of said town, on behalf of said town, then and in that case the said sum of $5,000 shall become due and payable to the said ...