Hubbard v. Town of Williamstown

| Wis. | Nov 6, 1884

Tayloe, J.

The demurrer was undoubtedly sustained for the reason that it appears from the facts set up in the complaint that the special town meeting to which the proposition of the plaintiff was submitted, and. which it is claimed directed the purchase of the abutments from the plaintiff and the building the bridge thereon, was irregularly called, and all proceedings taken at such meeting were void. It is not controverted by the learned counsel for the appellant that this objection is well taken. The statute requires that all special town meetings shall be called upon a fifteen days notice, and in this case, as appears on the face of the complaint, only fourteen days’ notice was given. See secs. 788, 789, R. S. 1878. The want of the notice required by the statute was fatal to the validity of the proceedings had at such meeting. Pratt v. Town of Swanton, 15 Vt. 147" court="Vt." date_filed="1843-01-15" href="https://app.midpage.ai/document/pratt-v-town-of-swanton-6572685?utm_source=webapp" opinion_id="6572685">15 Vt. 147. The contract set out in the complaint made by the supervisors, upon the authority supposed to have been given by the town at such town meeting, can be of no force to bind the town.

But the complaint alleges that after these void proceedings were had and this void contract made, the plaintiff delivered the abutments to the defendant, and that the defendant “accepted the Same and built a bridge thereon pursuant to said agreement.” Upon this demurrer this allegation of fact, as well as all others, must be taken as true. The allegation is that the town accepted the abutments and built the bridge thereon according to the contract. It is true that the complaint does not state the manner of acceptance, nor by what authority the town built the bridge thereon, but wé are inclined to hold that the allegation should be construed to mean that the town accepted the abutments in a lawful way, and that the bridge was built thereon by the lawful authority of the town.

Under these allegations it would be competent for the plaintiff, on the trial, to show that the town accepted the abutments by the action of the town at a lawfully called town meeting, and that the bridge was built thereon bjr the lawful direction of the town made at such town meeting; or that an acceptance by the supervisors, and the erection of the bridge by them, under the supposed authority of the void town meeting, was afterwards ratified by the town in some other way; as it might have been by voting to levy' a tax upon the town for the payment of the abutments and building the bridge, or by some other act or acts recognizing the authority of the supervisors in making the purchase and building the bridge. An averment in a pleading that an agent acted by due authority may be sustained by proof of subsequent ratification. Hoyt v. Thompsons Ex'r, 19 N.Y. 207" court="NY" date_filed="1859-06-05" href="https://app.midpage.ai/document/hoyt-v--thompsons-3631895?utm_source=webapp" opinion_id="3631895">19 N. Y. 207, 219. What acts on the part of the town would be sufficient to ratify an unauthorized purchase of the abutments and building of the bridge by the supervisors we are not called upon to determino upon this appeal.

In this view of the allegations of the complaint it does set out facts sufficient to constitute a cause of action, and it was error to sustain the demurrer.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings.