Blackman v. Town of Dunkirk

19 Wis. 183 | Wis. | 1865

By the Court,

Cole, J.

We are of the opinion that the court erred in the last instruction. which it gave the jury, in regard to the effect of the record. The circuit court said that it had admitted the record of the allowance of the claim, and the orders issued by the board on the 27th day of January, as being in law sufficient to discharge the board of any further action in the matter, and that under this ruling the plaintiffs could not recover. The error in this instruction was in not submitting to the jury the question whether the orders issued were delivered to Cook, or to his authorized agent, before the plaintiffs presented their claim. It is assumed that they were, and that the record introduced in evidence conclusively established the fact that they were so delivered. But all the record shows upon the point is, that at a meeting of the town board on the 27th of January, which was composed of only two supervisors, the claim of Cook was audited and allowed by them; that two town orders in the usual form were issued to Cook, each for $100, which were not countersigned by the clerk. It appears that Cook assigned these orders to Gregory on the 13th of February. And there was a payment of $75 indorsed on one of the orders, bearing date the 5 th of February. The inference sought to be drawn from all this is, that the orders were delivered to Cook and held by him when the payment was made ; and as this was before the board had any notice of the assignment of the claim to the plaintiffs, the board was exonerated from all further responsibility in the matter. But suppose the jury had been satisfied, from other facts and circumstances, that the orders had not been delivered to Cook on the 5th of February, nor until after the 10th of that month, when the plaintiffs presented to the board Cook’s assignment of the claim to them; then this inference would have been impelled. Possibly the jury would have so found had the question been submitted to them. The indorsement of payment and the assignment of the orders were not conclusive upon the point that they were actually made when they bore date. And it should have been left to the jury to determine whether in fact the orders were delivered to Cook, or his authorized agent, before the presentation of the plaintiffs’ claim to the board.

We are likewise inclined to the opinion that the claim of the recruit should be audited by a proper auditing board. The statute expressly provides that the supervisors of the town shall constitute a board for auditing accounts, and that in the absence of one or more of the supervisors, so many justices of the town shall be called in as together with the supervisors present shall make a board of three. Sec. 79, chap. 15, R. S. In the transaction of most of the business of the board, two supervisors can act (sec. 65); but in the discharge of this special duty, for greater safety probably, the law absolutely requires that the auditing board shall consist of three persons. It is admitted that at the meeting of the board on the 27th of January, only two supervisors were present, and that no justice was called in to make a board of three. Such a board had no right to act as an auditing board. But it is said there was no necessity for an auditing board in the case; that the amount to be paid the recruit was fixed by the electors of the town under chap. 13, Laws of 1862. See Laws of 1863, p. 23. It is very true that the auditing board had nothing to do in adjusting the amount which was to be paid a recruit. But it did, in every case, have to determine whether a person had been mustered into the service of the United States and credited to the town, so as to be entitled to the bounty money. To determine this called into exercise the function of an auditing board. And we think it the better view of the act of 1862, to say that it contemplated the action of an auditing board in the case.

The judgment of the circuit court is reversed, and a new trial ordered.