Roter v. City of Superior

• Citation: 91 N.W. 651,115 Wis. 243
• Parties: ROTER v. CITY OF SUPERIOR.
• Decision Date: 23 September 1902
• Court: United States State Supreme Court of Wisconsin

115 Wis. 243

91 N.W. 651

ROTER

v.CITY OF SUPERIOR.

Supreme Court of Wisconsin.

Sept. 23, 1902.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by L. R. Roter against the city of Superior. From a judgment for defendant, plaintiff appeals. Affirmed.

It appears from the record that July 8, 1899, the plaintiff filed with the city clerk a claim against the city for $253.02 and interest thereon from September 24, 1895, for failure to collect from the property assessed, or the owners thereof, the amount of the four several sewer construction certificates dated on the day and year last named, and issued by the city on that day to A. Johnson & Co., contractors, on four several lots, described, respectively, and which certificates, in pursuance of authority therein stipulated, were, for value received, duly sold, assigned, and transferred to one A. Lange, September 25, 1895, and thereupon said four certificates were, for value received, duly sold, assigned, and transferred by A. Lange to the plaintiff, October 12, 1895. The common council having disallowed the claim, the case was taken by appeal to the circuit court. Thereupon the city answered, alleging the proceedings of the common council and board of public works in making the assessment in June, July, and August, 1895; the letting of the contract for the construction of the sewer to A. Johnson & Co., August 21, 1895, for the aggregate sum of $845.52; the construction of the sewer; the assessment of benefits; the issuance of such certificates; and the three several actions by lot owners to set aside such assessments, and restrain the collection thereof, commenced, respectively, August 30, 1895, December 23, 1896, and July 7, 1900; and the proceedings of the common council authorizing the board of public works to view the premises, and determine the benefits, and assess the same upon the property benefited in accordance with the provisions of the charter, in the summer and autumn of 1899. A jury was waived, and the cause was tried by the court, and at the close of the trial the court made lengthy findings of fact, covering all the proceedings and litigation in respect to the assessment and the attempts on the part of the city to collect the same. And as conclusions of law the court, in effect, found: (1) That the plaintiff has no claim against the city for or on account of the sewer construction certificates mentioned in his claim; (2) that such certificates were received by A. Johnson & Co. in full payment and satisfaction of their claim against the city for the amount due them under their contract with the city for the construction of the sewer in question; (3) that the sewer construction certificates held by the plaintiff never were or became a general indebtedness or liability against the city; (4) that the defendant is entitled to judgment dismissing the claim of the plaintiff, with costs. From the judgment entered thereon accordingly the plaintiff brings this appeal. It is undisputed that the contract made by A. Johnson & Co. with the city August 21, 1895, for the construction of the sewer, provided, among other things, that: “Before any final estimate shall be allowed by the comptroller, the contractor will be required to sign a certificate on said estimate to the effect that he will accept the same as a settlement in full for all claims against the city of Superior on account of work done or materials furnished in the construction of the sewer or appurtenances thereto on the streets mentioned in the contract for which the estimate is given;” and also that: “This work will be paid for in sewer certificates issued against the property benefited to the extent of one dollar and twenty-five cents ($1.25) per foot of property on each side of the sewer, and any cost in excess of this will be paid in cash.” It is also undisputed that each of the four sewer construction certificates issued pursuant to such contract, and held by the plaintiff, and for the failure to collect which he makes this claim, contains the following provision: “This certificate is transferable by indorsement, but the holder thereof shall have no claim upon said city of Superior in any event except from the special assessment made for said work and for the collection of the same as provided by law, in the city of Superior, and return of same to county treasurer, when unpaid, as other delinquent taxes.”Geo. P. Knowles, for appellant.

Archibald McKay and Geo. B. Hudnal. City Atty., for respondent.

CASSODAY, C. J. (after stating the facts).

The city contends that it is not liable to the plaintiff in this action by reason of the provisions of the sewer construction contract and certificates recited above. It is very obvious that if the plaintiff, as the holder of the certificates in question, is limited to the special assessments, as therein stipulated, and as agreed in the contract...