Spaulding v. Wood Cnty.

• Decision Date: 30 April 1935
• Citation: 260 N.W. 473,218 Wis. 224
• Parties: SPAULDING v. WOOD COUNTY.
• Court: Wisconsin Supreme Court

218 Wis. 224

260 N.W. 473

SPAULDING

v.WOOD COUNTY.

Supreme Court of Wisconsin.

April 30, 1935.

Appeal from a judgment of the Circuit Court for Wood County; Byron B. Park, Circuit Judge.

Affirmed.

In this action, which was commenced on April 22, 1933, the plaintiff, Willard Spaulding, seeks to recover from the defendant, Wood county, certain sums alleged to be due him as salary and for the use of his automobile. Trial was had to the court and a jury. Both parties moved for a directed verdict. The jury was thereupon discharged and the case taken under advisement by the court. Thereafter, the court made its findings of fact and conclusions of law and ordered judgment dismissing the plaintiff's complaint. From a judgment in favor of the defendant, entered August 13, 1934, the plaintiff appealed. The facts will be stated in the opinion.

Herbert A. Bunde and Goggins, Brazeau & Graves, all of Wisconsin Rapids, for appellant.

Chas. M. Pors, of Marshfield, for respondent.

NELSON, Justice.

For several years prior to 1929, the defendant, hereafter called the county, had employed a county agricultural representative, hereafter called county agent, pursuant to the provisions of section 59.87. R. A. Peterson was such county agent. The county board had also appointed a special committee on agriculture. Section 59.87 (9). On May 15, 1929, a meeting of the committee was held for the purpose of adopting a program for the ensuing year. The program adopted included the project of improving dairy herds through the so-called mail order system of testing cows. It was thought that at least 500 farmers should take advantage of the proposed service. The testing of cows through the mail order system was evidently carefully considered by Mr. Peterson and the agricultural committee. For about two years prior to November 15, 1929, the plaintiff had been employed as a cow tester in Clark county. Some time prior to October 21, 1929, Mr. Peterson and several members of the committee had interviewed the plaintiff at Neillsville for the purpose of learning more about the mail order system of testing cows, and no doubt of ascertaining whether the plaintiff might be interested in performing similar work in Wood county. Prior to the interview mentioned, Mr. Peterson had held many meetings with the farmers of Wood county for the purpose of selling to them the idea of the mail order system of testing their cows. On October 21, 1929, Mr. Peterson wrote the plaintiff that he had “checked up on our association program and find that we have 257 members listed as a result of our drive, in addition to a number of prospects”; that he was confident that the 300 mark could easily be reached by December 1; that the test was finding general favor among farmers, bankers, and people generally, and that he was confident that it would succeed in a big way and that he was pleased that the plaintiff would take charge of the work in Wood county. He suggested that the plaintiff take up the work about November 15, as that would give ample time to get the laboratory fitted up in nice shape. He requested the plaintiff to check over the list of equipment that would be needed and either order it himself or send the list to him. He suggested that it might be well to purchase the necessary materials on a time basis so that the association could finance the deal itself. The plaintiff came to Wisconsin Rapids shortly before November 15 to start work. Prior to that date the terms of employment had evidently been agreed upon, for on that day Mr. Peterson wrote the plaintiff as follows:

“In regard to our previous understanding relative to the terms of our contract, it is the understanding that you are to have charge of the Dairy Record Association of Wood County, in co-operation with the county agent's office.

According to the arrangement made, you are to start work November 15, 1929, and are to receive a salary of $150.00 per month for handling an association of 250 members or less. You are to receive $12.50 per month for each additional twenty-five members under test above the 250 base membership.

You are to receive mileage at the rate of 6¢ per mile for necessary automobile service in connection with field work for the first year of the association work. It is understood that at that time an analysis of the condition of the association will be made and adjustments made accordingly.”

In his report to the county board for the year ending November 1, 1929, the county agent said: “In view of the importance of testing cows for production and since it is also important that a large number of herds be tested, the mail order system was adopted as a part of the dairy development program. A series of 53 meetings were held in all parts of the County at which testing, feeding, and other dairy problems were discussed. 220 herd owners signed up to test their herds in the mail order system, and 50 others sent in cards signifying their interest. An up to date laboratory is being set up in the building next to the County Agent's office at Wisconsin Rapids that will start the test of the first herds about November 25th. An experienced and well qualified tester, Mr. Willard Spaulding, will have charge of the testing work, which will be operated as a project from the County Agent's office under the supervision of the Agricultural Committee. The Dairy Record Association will be the official name for the organization. New members are coming in daily, and it is expected that close to 300 herds will be entered by the first of the year. The mail order system is simple, easy, accurate, low in cost, and gives information on production and feeding to the herd owners, without publicity.”

That report was accepted and placed on file.

The association plan set up by the county agent and the committee required each farmer who subscribed for the service to pay $4, and in addition to pay $1 per year for each cow tested. The association was known as the “Dairy Record...