Sharp v. City of Mauston

• Decision Date: 27 March 1896
• Parties: SHARP v. CITY OF MAUSTON.
• Court: Wisconsin Supreme Court

92 Wis. 629

66 N.W. 803

SHARP

v.CITY OF MAUSTON.

Supreme Court of Wisconsin.

March 27, 1896.

Appeal from circuit court, Juneau county; O. B. Wyman, Judge.

Action by Lucinda Sharp against the city of Mauston to recover a sum allowed plaintiff by defendant's city council in settlement of a claim for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff received a personal injury by a fall on a sidewalk in the defendant city. She gave notice to the mayor of such city, pursuant to section 1339, Rev. St., of such injury, claiming that it occurred without fault on her part, by reason of the sidewalk being out of repair; and at the same time she filed with the city clerk a claim for $500, as compensation for such injuries. The claim was investigated by a committee of the common council, who ascertained from the plaintiff that the matter could be settled for $400; and they reported such fact to the council, and thereafter such council adopted resolutions allowing the claim accordingly. Thereafter, plaintiff, through her attorneys, demanded of the proper officers the issuance and delivery of an order on the city treasurer for the amount so allowed in settlement of such claim. They refused to comply with such demand, whereupon this action was brought, upon the theory that, by reason of the facts, a binding contract existed between the city and plaintiff requiring it to pay plaintiff the said sum of $400 in settlement of her claim. The foregoing facts and others requisite to make out a cause of action on plaintiff's theory were set forth fully in the complaint. Defendant demurred generally. The demurrer was overruled, and defendant appealed.F. S. Veeder, for appellant.

Barney & Beebe and Spooner, Sanborn, Kerr & Spooner, for respondent.

MARSHALL, J. (after stating the facts).

It appears to be conceded by the appellant that if, after the common council allowed respondent's claim at $400, she accepted such action as a settlement, a binding contract was thereby made; and that, if such facts appear by the complaint, a good cause of action is stated. The demand in writing upon the city treasurer for the order, after the action of the council allowing the claim, before any proceedings were taken looking to a reconsideration of the matter, constituted an acceptance just as effectual as a writing in terms accepting the promise of the city to pay the sum allowed in settlement of the claim. Such demand was consistent with the theory of an unqualified acceptance, and inconsistent with any other; and, as the complaint states the facts in regard to such demand, all the facts appear requisite to show a complete and binding contract between the parties. Appellant's counsel states correctly the law that an accord must be followed by a satisfaction in order to be binding; but that does not mean that parties cannot, by an executory contract, liquidate a disputed claim, so that such contract can be enforced by either party to it. All that is required in such a case is that there be an unconditional acceptance of the promise itself, and not the mere performance of it in satisfaction of the disputed claim. Such acceptance of the promise, when made, operates at once to substitute the new contract made by the mutual promises of the parties for the old contract or claim; and, if such new contract is not performed, the remedy is by action for a breach of it, and not on the original claim. Such is the effect of modern cases both in England and this country. Good v. Cheesman, 2 Barn. & Adol. 328; 1 Smith Lead. Cas. 150; Evans v. Powis, 1 Welsb. H. & G. 601; 2 Pars. Cont. 194, 195; Story, Cont. § 982; Com. Dig. “Accord,” B, 1, § 4; Billings v. Vanderbeck, ...