City of Seymour v. Town of Seymour

56 Wis. 314 | Wis. | 1882

OetoN, J.

Sec. 21, subch. 6, ch. 241, Laws of 1819, provides that the legal indebtedness of the Town of Seymour shall be apportioned between said town and the Oity of Sey-mmor, incorporated by said act, in the proportion of the previous year’s assessment, and that on or before the first day of April,' 1819, the board of supervisors of said town shall in like manner apportion “ the general funds and other property of the Town of Seymour to the said Town of Seymour and City of Seymour respectively,” etc. The complaint substantially alleges that the town proceeded under said act and apportioned the existing indebtedness of said town on the basis of such assessment — $2,585 to the town, and $1,415 to the City of Seymour — and apportioned on the same basis the general fund and property of said town, with the exception of seventy shares of railroad stock of the Green Bay & Minnesota Railroad Company, of $100 each, which was to be left with said town for further apportionment. And the complaint further alleges that afterwards, in December, 1880, the town sold the whole of said stock to certain parties for the sum of $350, or $5 per share, and converted the same to its own use, and at that time said stock was actually worth $10 per share; and that the plaintiff has made demand for its just proportion of said stock or its value, and the town has refused. The answer of the defendant admits the complaint as to the apportionment actually made as alleged, but does not admit the allegation in respect to the railroad stock, and alleges an apportionment of certain other funds and a counterclaim against the city by reason of certain mistakes and omissions, and admits that the town held said railroad stock described in the complaint, and that the plaintiff filed its claim therefor, or its value, before the town board, as alleged, and that it was disallowed. This suit is brought to recover the proportion of the value of said stock so converted by the defendant town to which the plaintiff is entitled on the above basis.

On the trial the plaintiff offered to prove that the railroad stock was not apportioned, but that by a resolution of the town board it was to be left with the clerk of the town, to be held for the joint use of the town and city, in the proportion above stated. This was objected to on behalf of the defendant, on the ground that there was no such action of the town of record, and the circuit court sustained the objection. The town clerk, as a witness, was then asked whether “ he was given any stock of the G-reen Bay Eailroad Company ” after the proceedings of apportionment, and upon objection to this question the counsel of the appellant stated to the court that he proposed “ to show this stock was deposited with him [the clerk] after this apportionment was made, and was taken from his custody and sold by the Town of Seymour.” The court ruled that this evidence was inadmissible, and sustained such objection. According to the pleadings, strictly construed, the allegation in the complaint that the “ town did so apportion said funds and other property” (referring to the funds and other property mentioned in the act), and which is admitted in the answer, would include the railroad stock which was property belonging to the town. It follows that the exception of the railroad stock from said apportionment having been denied in the answer, and the proof of it having been excluded on the objection of the defendant, it must be an accepted fact in the case that the railroad stock was included in the settlement or apportionment, and the defendant is estopped by its pleading and objection from disputing it.

The duty of making this apportionment is imposed by the act wholly upon the town. The city was not yet organized, and could not be when this duty was required to be performed. In the absence of proof to the contrary, and in accordance with the pleadings, that duty must presumably have been performed fully in compliance with the law, and the town is estopped from setting up in defense of this action that it was not so performed. .Whether the railroad stock was included in the apportionment or not can make no difference to the town or the city. It should have been, and, according to the pleadings, it was. Every important fact necessary to the liability of the town in this action is admitted in the pleadings, except the conversion of this stock by the town and its value, and the above question, with the accompanying offer, were for the purpose of proving these facts. Th.e basis of the apportionment, as determined by the town from the previous year’s assessment, was about one third to the city. By the act the city was entitled to this proportion of this railroad stock, and whether the town actually apportioned it or not, it retained possession of it, and sold it and converted it to its own use. It seems to us that the liability of the town in this action is beyond all question, and that the above question, with the offer to show the conversion and the value, as alleged in the complaint, was proper, and we cam conceive of no good reason for ruling out this evidence. This question stood upon an entirely different footing from those questions by which it was sought to be proved that the town acted in relation thereto by resolution not found in its records. The liability of the town in this action to pay the city its just proportion of the value of this railroad stock so converted, appears to rest upon the plainest principles of elementary law, and no authorities need be cited or referred to, beyond a statement of the case.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.