Wilcox v. Porth

• Decision Date: 07 October 1913
• Citation: 154 Wis. 422,143 N.W. 165
• Parties: WILCOX ET AL. v. PORTH ET AL.
• Court: Wisconsin Supreme Court

154 Wis. 422

143 N.W. 165

WILCOX ET AL.

v.PORTH ET AL.

Supreme Court of Wisconsin.

Oct. 7, 1913.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by John L. Wilcox and another against Henry Porth and others. From an order sustaining the demurrer to the answer, the defendants appeal. Affirmed.

This is an action by plaintiffs, as residents and taxpayers of the city of Green Bay, for and in their own behalf, and all other taxpayers of the city to recover from the defendants the sum of $734 for the benefit of the city.

The complaint alleges that this sum of $734 was unlawfully paid out of the funds of the city by the direction of the defendants, as city officers, to the defendant Hill. It is alleged that on March 9, 1910, the city through its common council entered into a contract with the defendant Hill for the pavement of part of one of the city streets with asphalt on cement foundation; that the pavement was not completed until the 15th day of December, 1910; that the proper examination and inspection of the pavement was necessarily delayed, on account of its condition resulting from frost, until the following summer; that the defendant Hill, as such contractor, agreed and became bound by the contract for paving this avenue as follows: “On the completion of the contract, all portions of the work must be gone over carefully by the contractor personally, or by his accredited representative, who must satisfy himself that every item is completed, and all defects made good, and that all surplus material, refuse, dirt, or rubbish is cleaned up and removed, and that the whole work is in a finished, satisfactory, neat, and tidy condition, and ready in all respects for acceptance by the city. A sworn statement that the condition of the work is as just stated will be required from the contractor, in addition to the report of the city engineer, before the work will be accepted by the committee on streets and bridges.” It appears from the allegation in the pleading that this affidavit and the engineer's report of the satisfactory completion of the work had not been filed with the city on July 7, 1911. On this day a report of the street and bridge committee was filed with the common council, stating in effect that the contractor, Hill, had completed the contract for the improvement of Monroe avenue, and recommending that the work be approved and accepted, and that the city issue certificates and bonds pursuant to the assessment therefor made against abutting property. It is alleged the plaintiff Wilcox, as a member of the committee, signed the report, and that the report was adopted by the vote of the members of the common council, and that plaintiffs, as members thereof,voted in favor of its adoption; that the members of the common council, including the plaintiffs, unanimously passed a resolution authorizing the issuance of the certificates and bonds upon the abutting property in part payment of the improvement to J. F. Hill, the contractor. It further appears by the pleadings that the common council on August 4, 1910, by a majority vote of the members thereof, passed a resolution, pursuant to a recommendation of the street and bridge committee, authorizing the payment of the sum of $734 by the city to the contractor, J. F. Hill, as interest on account of the delay of the payment of the amount due him for the completion of the contract for this street improvement. The plaintiffs, as members of the common council, voted against its authorization. No verified claim or written demand for this claim of interest was ever presented or filed by the contractor, J. F. Hill, against the city. It is alleged that the members of the common council acted in good faith in authorizing the payment of this amount, and honestly believed that the same was justly and legally due Hill on account of delay in paying him by issuance of certificates and bonds on the abutting property. The plaintiff demurred to the answer on the ground that the facts alleged do not constitute a defense. The court sustained the demurrer.

This is an appeal from the order sustaining the demurrer to the answer.

J. H. M. Wigman, of Green Bay, for appellants.

Minahan & Minahan, of Green Bay, for respondents.

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

The appellants assert that the demurrer to the answer relates back to the complaint, challenges its sufficiency, and that it appears upon facts pleaded and not controverted that no cause of action exists against the defendant. There is no dispute as to the above stated facts, and from them it appears that the plaintiffs demand recovery of the sum of $734 from the defendant for the benefit of the city of Green Bay. It is alleged that the defendant caused this sum to be paid to Hill, the contractor, as damages for an alleged delay in paying what was due him on the contract for the pavement of the city street without any legal right to do so.

[1] The plaintiffs' right to maintain this action is questioned upon the ground that a private person, as a resident and taxpayer, cannot sue to recover money actually paid out by the city. It is contended that such persons have the right only to protect their interests and...