77 Wis. 29 | Wis. | 1890
This is an action brought upon several town orders which were drawn upon the town treasurer and were made payable “ out of any moneys in the town fund not otherwise appropriated.” The orders are signed by the chairman of the town board, and are countersigned by the town clerk, and purport on their face to have been issued for a demand against the town. The main objection taken to. the complaint is that it is defective because it does not allege that the claims of the persons to whom the orders were issued were audited and allowed by the town board of the town, or that the board authorized the clerk to issue the orders. The objection we consider entirely untenable. The presumption is that the claims were audited and allowed as just claims against the town; otherwise the officers of the town would be guilty of a gross violation of legal duty in issuing orders for their payment. The holder of the orders would certainly show & prima facie case against the town when he presented the orders, and would not be bound to show in the first instance that the orders were issued on a claim which had been lawfully audited, or that the clerk was authorized to issue the orders. Prima facie the orders were valid obligations against the town, and the clerk was authorized to issue them.
The case of Hubbard v. Lyndon, 28 Wis. 674, contains nothing in conflict with this view. There, on the trial, the defendant offered to show that the order in suit was issued in payment of a claim against the town, which claim had not previously been audited by the town board, and the evidence was rejected. This court held that the evidence
We cannot presume, upon the facts stated, that the board did not audit the claims for which the orders were issued, or that the clerk issued the orders without authority of law. This would be proper matter of defense, if true, to excuse the failure to pay the orders when demand was made for their payment. It certainly is not necessary for the plaintiff to aver that the accounts for which the orders' were issued had been properly audited, and allege that the board had authorized the issuing of the orders.
The objection that the orders were drawn upon a particular fund is clearly untenable. The orders are payable out of any moneys in the town fund not otherwise appropriated. They are payable but of a general fund of the town. The defendant should have funds to pay all orders, or should at least have voted a tax to pay them. Sec. 823, R. S.; Montague v. Horton, 12 Wis. 668.
By the Gourt. — The order of the circuit court is affirmed, and the cause remanded for further proceedings.
