53 Wis. 433 | Wis. | 1881
"We are inclined to agree with plaintiff’s counsel in the proposition that the county board had hot the right to establish by resolution the price of board in advance, and' bind the sheriff by it; for the statute imposes the absolute duty and responsibility upon that officer “to take the charge and*
On the other question, as to the proper measure of damages, it is claimed by the learned counsel for the county, that, under the evidence which was introduced against his objection, and under the charge of the court, the jury may have supposed the sheriff was entitled to recover not only what he actually and necessarily expended for boarding the prisoners, but also a reasonable profit on the board which was furnished, as well as pay for personal services. The charge of the court, taken together, does not seem open to any serious objection. The learned circuit judge told the jury, in substance, that the plaintiff was entitled to recover a reasonable charge for what it actually cost him to furnish a sufficient quantity of wholesome food for prisoners in his custody, at a fair market price at the time and under the circumstances under which he was obliged to purchase the necessary articles of food for that purpose; also what it would reasonably cost him to prepare the food which was served to the prisoners. The jury were directed that, in arriving at what was a proper charge for preparing and serving food, they might consider the manner in which the prisoners were confined, their number, and the number of servants it was reasonably necessary for the plaintiff to employ to perform that service; but that nothing was to be allowed for the personal service of the sheriff or his jailer. Under this charge the jury would not likely have given the sheriff anything for the personal services of himself or his jailer.
But upon the testimony, which was admitted against objection, the jury might well have allowed profits, or something above the actual cost of furnishing board. We think it fairly inferable, from the scope and tendency of considerable testimony given on the part of plaintiff, that a claim for profits was made, or, at all events, that the jury might have estimated the damages on the basis that they were allowable. But as the right of recovery is strictly limited to what was actually and necessarily expended by the sheriff for furnishing, preparing and serving the proper food, the evidence should be confined to that inquiry alone. It is clear, however, -that it was not; and, as we cannot tell what influence the improper testimony directed to a different end might have had upon the jury, there must be a new trial.
By the Court.— The judgment of the circuit court is reversed, and a new trial ordered.