Ryan v. Olson

Decision Date11 March 1924
Citation183 Wis. 290,197 N.W. 727
PartiesRYAN v. OLSON ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Columbia County; C. A. Fowler, Judge.

Action by John Ryan against Ben Olson and others, as President, Clerk, and Trustees of the Village of Kilbourn City. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed in part, reversed in part, and remanded, with directions.

The complaint alleges that the plaintiff is a taxpayer and resident of the village of Kilbourn City, and that he brings this action in his own behalf and in behalf of all other persons similarly situated; that during the times mentioned in the complaint the defendant Olson was president of the village, the defendant A. W. Luettgerodt the village clerk, and the defendants Helland, Field, Arntz, Wirtz, Pribbenow, and Mechler members of the village board; that on the 21st day of March, 1923, the said board and the members thereof fraudulently conspired to procure for the defendant Stanton, from said village, a transfer of certain property lying along the Wisconsin river, at a grossly inadequate price; that the defendant Helland participated in and conducted all negotiations for said Stanton, and was directly interested in the sale of such property to him; that the defendant Olson was indirectly interested in securing such conveyance, assisted in securing the execution of the deed, and that by reason of the improvident and fraudulent action of the village officers, and the interest therein upon the part of the said Helland and said Olson, said sale, which was actually consummated on said date, was and is wholly void. The action is brought to rescind such conveyance and to direct the village to repay to said Stanton the amount of the purchase price.

The defendant Olson interposed a demurrer upon two grounds; First, that the complaint does not state facts sufficient to constitute a cause of action; and, second, that the plaintiff has no legal capacity to sue. The court overruled the demurrer upon the first ground stated, but sustained the demurrer on the second ground. The defendant Olson, pursuant to section 3049a of the Statutes, demands a review of the order of the court overruling the demurrer on the first ground. Both grounds of demurrer are therefore up for consideration by this court on the appeal.Rogers & Rogers, of Portage, for appellant.

Grady, Farnsworth & Walker, of Portage, for respondents.

DOERFLER, J. (after stating the facts as above).

[1] Did the court commit error in overruling the demurrer upon the ground alleged that the complaint does not state facts sufficient to constitute a cause of action? Under section 61.33 of the Statutes, no trustee shall in any manner be directly or indirectly interested in any contract with the village, and, by section 4549 of the Statutes, such a transaction is made a misdemeanor. Section 61.33, Statutes, is a mere declaratory statute. As president of the village, the defendant Olson was charged with the duty of representing and promoting the interests of the village. As an individual, his interest in the transaction would tend to swerve him from that undivided loyalty and devotion which he owes to the village as one of its officers. Under such circumstances, the transaction becomes void. Gillen Co. v. Milwaukee, 174 Wis. 362, 183 N. W. 679; 22 R. C. L. p. 460, § 121; Webster v. Douglas County, 102 Wis. 181, 77 N. W. 885, 78 N. W. 451, 72 Am. St. Rep. 870.

[2][3] The defendant Olson contends that he is not a necessary or proper party to the action; that no relief is prayed for as against him; and that therefore the demurrer on the first ground above stated should have been sustained. As will appear from the foregoing statement of facts, the complaint alleges that Olson is indirectly interested in such transaction. Such interest, under the circumstances alleged, constitutes fraud. While the primary relief prayed for is a rescission and the return of the consideration on the part of the village, the complaint also contains the usual prayer in equitable actions, for such further relief as the...

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6 cases
  • Quackenbush v. City of Cheyenne
    • United States
    • Wyoming Supreme Court
    • July 27, 1937
    ... ... Wakefield (Mich.) 210 N.W. 322; Cumberland Coal Co ... v. Sherman, 30 Barb. (N. Y.) 553; State v ... Williams, 153 N.C. 595; Ryan v. Olson (Wis.) ... 197 N.W. 727. The second sale was an attempted ratification ... of the first sale. It was unsupported by a consideration and ... ...
  • Locke v. Gen. Accident Fire & Life Assur. Corp.
    • United States
    • Wisconsin Supreme Court
    • April 12, 1938
    ...The court sustained the objection, but stated that plaintiff might call Larson as his own witness. Appellant cites Ryan v. Olson, 183 Wis. 290, 197 N.W. 727, as authority for his procedure in this instance. There, Olson was the village president and was joined as a party defendant with the ......
  • Taxpayers' League of Wayne County v. Wightman
    • United States
    • Nebraska Supreme Court
    • March 14, 1941
    ... ... resisting plaintiff's case is sufficient to show such ... refusal. A demand would have been an idle ceremony. Ryan ... v. Olson, 183 Wis. 290, 197 N.W. 727. A resident ... taxpayer can maintain such an action without showing any ... interest peculiar to ... ...
  • Taxpayers League of Wayne Cnty. v. Wightman, 30914.
    • United States
    • Nebraska Supreme Court
    • March 14, 1941
    ...answered and is resisting plaintiff's case is sufficient to show such refusal. A demand would have been an idle ceremony. Ryan v. Olson, 183 Wis. 290, 197 N.W. 727. A resident taxpayer can maintain such an action without showing any interest peculiar to himself. Woodruff v. Welton, 70 Neb. ......
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