Kane v. City of Fond du Lac, 40 Wis. 495

Kane v. City of Fond du Lac

40 Wis. 495 | Wis. | 1876

Lyon, J.

I. That a municipal corporation may, unless restricted by its charter, lawfully submit a disputed claim against it to arbitration, and that the common council of the defendant city had ample power to do so in the present case, we cannot'doubt. These propositions are fully sustained by the authorities cited in behalf of the plaintiff, and by the charter of the city.

Neither do we doubt that it was competent for the common *500council to entrust tbe city attorney with the selection of tbe arbitrators.- That body bad as full and complete control of tbe litigation as a natural person bas of litigation to wbicb- be is a party; and no one doubts tbat a natural person will be bound by an award made pursuant to an authorized submission entered into by bis attorney. Judge Dillon, in bis treatise on municipal corporations, says: “The authorized body of a municipal corporation may bind it * * by a resolution, or by a vote clothe its officers, agents or committees with power to act for it; and a contract made by persons thus appointed by tbe corporation, though by parol (unless it be one wbicb tbe law requires to be in writing), will bind it.” § 374. Moreover, tbe charter of tbe city of Eond du Lac expressly charges tbe city attorney with tbe duty of conducting tbe law business of tbe city when so ordered by tbe common council, and gives tbe council full power to direct what duties be shall perform. P. & L. Laws of 1868, p. 90, sec. 6, and p. 97, sec. 20. If tbe council may impose a given duty upon him, be must necessarily be clothed with power to perform such duty.

II. It is claimed for tbe city that tbe award is void for the following alleged reasons: 1. No notice of the meeting of tbe arbitrators was given to tbe city attorney; 2. The witnesses were not sworn; 3. Two of the arbitrators bad beard the statement of tbe plaintiff, and one of them bad acted in bis behalf in urging payment of bis claim; 4. Tbe award was drawn by plaintiff’s attorney without being directed by tbe arbitrators to do so; and, 5. Tbe arbitrators examined two witnesses in tbe absence of tbe city attorney.

These reasons will be briefly considered in their order. 1. Tbe city attorney aj>peared for tbe city, and, on tbe bearing before tbe arbitrators, examined witnesses, or one witness, and argued and submitted tbe case of tbe city to tbe arbitrators. This dispensed with tbe necessity of notice of tbe time and place of bearing. 2. This is not a submission under ch. 131, *501R. S., but under tbe common law. It is not provided in tbe submission that tbe witnesses be sworn, and we are aware of no law wbicb requires it. 3. Tbe testimony fails to show any improper communication by tbe plaintiff to either of tbe arbitrators, either before or after tbe submission. The court rejected testimony offered for tbe purpose of showing that one of tbe arbitrators, who was an alderman of tbe city, bad been active in tbe council in endeavoring to procure payment of plaintiff’s claim, or its submission to arbitration. "We think tbe testimony was properly rejected. There was nothing in such conduct wbicb interfered with the competency of such alderman to act as an arbitrator. Besides, tbe city is chargeable with notice of bis action in tbe council, and, by accepting him as an arbitrator, waived any right to object to him for that reason. 4. There is no proof in tbe case tending to show that tbe award as drawn does not contain just what tbe arbitrators agreed upon; and, that being tbe case, it is of but little importance who drew it. After tbe award was agreed upon, we think there was no impropriety in employing tbe attorney of the'prevailing party to draw it up. This is analogous to an every-day practice in tbe courts; the court announces its judgment, and directs tbe attorney of tbe prevailing party to reduce it to wilting for entry of record. It does not appear bow Mr. Shepard, tbe attorney of tbe plaintiff, came to draw tbe award, neither is it material, nothing having been shown to raise tbe slightest doubt or suspicion that be did not draw it strictly as tbe arbitrators bad decided. 5. It is true that tbe arbitrators examined two witnesses in tbe absence of tbe city attorney, and away from tbe place of bearing. But tbe testimony is uncontradicted, that tbe city attorney consented thereto. Tbe court submitted to tbe jury tbe question whether such consent was given as to one of these witnesses, but that was unnecessary.

III. On tbe trial, testimony was offered in behalf of the defendant to show that tbe shutter, by the falling of which the *502plaintiff was injured, was not in a public street, and bence that tbe city was not liable for sucb injury. Tbe testimony was rejected, and properly, for tbe reason that tbe question of tbe liability of tbe city was submitted to tbe arbitrators, and their decision of it is final. This rule is elementary.

2. It seems that after tbe action against Perkins and the city was commenced, and before tbe submission was made, tbe plaintiff stipulated in that action as follows: “ For and in consideration of $50 worth of accounts belonging to defendant Perkins, which I have selected from a batch of accounts in tbe bands of Knowles & Babcock, I have this day settled and discontinued the said action against tbe said E. Perkins by and with, tbe consent of my attorney, C. E. Shepard, and direct that this settlement and discontinuance be entered accordingly. Each party to pay bis own costs. This is not to affect tbe action against tbe city.”

Tbe stipulation was offered in evidence in this action, on behalf of tbe city, to show that tbe plaintiff bad received satisfaction of Perkins for bis damages, and bence bad no claim against tbe city therefor; but tbe same was rejected by tbe court. If tbe plaintiff’s claim against tbe city could be affected in any event by tbe stipulation (a point not here decided), it was a matter for tbe consideration of tbe arbitrators, and the city should have made that defense before them. It not appearing that there was any fraudulent concealment of tbe stipulation, tbe effort to make tbe defense on tbe trial of this action came too late.

Tbe foregoing observations, it is believed, dispose of all tbe material questions presented by tbe assignment of errors. Failing to find any material error disclosed in tbe record, we must affirm tbe judgment of tbe circuit court.

By the Ooivrt. — Judgment affirmed.