136 Wis. 395 | Wis. | 1908
Considerable discussion is devoted to the proposition that the mandate of this court expressly prohibited the entry of any judgment for interest. If the former judgment of the court passed upon that question adversely to the plaintiff, it is not now subject to correction, even if the conclusion were conceded to be erroneous. Everett v. Gores, 92 Wis. 527, 66 N. W. 616; Ledebuhr v. Wis. T. Co. 115 Wis. 214, 91 N. W. 1012; Hocks v. Sprangers, 113 Wis. 123. 136, 87 N. W. 1101, 89 N. W. 113. We do not con-
Neither are we disposed to follow those cases which hold that a municipal corporation is not liable for interest on an indebtedness due from it in the absence of an express promise to pay. If the question is an open one in this state at all, no good reason is apparent why, after a claim is properly presented to a municipal corporation and payment is duly demanded, such claim should not -draw interest if interest would be allowable on a like claim against an individual. This statement has, of course, no reference to statutory provisions exempting municipalities from the payment of interest on certain kinds of indebtedness.
One of the substantial contentions of the appellant is that the claim of the plaintiff did not begin to draw interest until after a demand for payment was made, and that no such demand was made in this case as would entitle the plaintiff to
Besides, the charter of the city of Appleton provided (sec. 25, subch. Y, ch. 47, Laws of 187 6; sec. 24, subch. Y, ch. 441, Laws of 1885) that “no action shall be maintained . . . against the city, upon any claims or demands of any kind whatsoever, whether arising from contract or otherwise, until such person shall have first presented such claim or demand, duly verified under oath, to the common council for allowance.” Other charter provisions required the audit of such claims and their allowance by the common council before any order should be drawn in payment thereof. These provisions required the presentation of the plaintiff’s claim for hydrant rental before any action could he begun to recover the same. Oshkosh W. W. Co. v. Oshkosh, 106 Wis. 83, 81 N. W. 1040; Vogel v. Antigo, 81 Wis. 642, 645, 51 N. W. 1008; Fleming v. Appleton, 55 Wis. 90, 12 N. W. 462; O'Donnell v. New London, 113 Wis. 292, 296, 89 N. W. 511; Morrison v. Fan Olaire, 115 Wis. 538, 541, 92 N. W. 280; Bunker v. Hudson, 122 Wis. 43, 50, 99 N. W. 448.
In this case the plaintiff did not make any demand under the contract which was held to be in force. It was entitled to six months’ rental on August 1, 1904, and to a like amount on February 1, 1905. It asserted that the contract was no longer in force, and that it was entitled to monthly payments, based upon an implied obligation to pay what the services were worth, instead of on an express contract under which it was entitled to semi-annual payments. It claimed nearly $300 per month more than it was entitled to receive. The city might well have disallowed the bills and stopped there. Plaintiff never evinced any intention to accept or
Furthermore, the city was relieved from making any al
The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in favor of the plaintiff and against the defendant for $3,607.58.
By the Court. — It is so ordered.