120 Wis. 611 | Wis. | 1904
The motion of appellant’s counsel for a verdict was based on the theory that the action of two members of the committee, in contracting for the horse without notice to their associate or opportunity for him to participate-in the matter, was not valid. The motion was overruled on the theory that a committee of a governing body intrusted to do a particular thing of a public nature, though requiring-the exercise of judgment, may act when a majority of its members are present and concur; and that when action is thus taken there is a conclusive presumption that all essen-
“We make no question that the general principle of law is that public agents may act by majorities where all are present or when all have notice to be present, and generally not otherwise.”
Many cases might be cited to the same effect, mostly quite ' ancient, since the rule is so elementary that it is rarely called in question with a sufficient degree of success to require a restatement of it in published decisions. We will refer to the following: Downing v. Rugar, 21 Wend. 178; Grindley v. Barker, 1 Bos. & Pull. 229; Dobson v. Fussy, 7 Bing. 305;
The gist of what the court said in Perry v. Tynen, as embodied in the syllabus, is in harmony with the language of all courts in speaking on the subject above discussed:
“In cases of the delegation of a public authority to three or more persons, the authority conferred may be exercised and performed by a majority of the whole number. If the act to be done by virtue of such public authority requires the exercise of discretion and judgment — i. e., if it is a judicial, act — the persons to whom the authority is delegated must meet and confer together, and be present when the act is performed; or at least a majority must meet, confer, and be present, after all have been notified to attend.”
That the duty which devolved upon the committee in question was other than merely ministerial in character, seems evident. They were required, not only to buy a horse, but to select a horse to be bought, passing upon the suitableness of the animal for the purposes for which it was intended.
The learned counsel for respondent seem to have labored industriously to discover support for the view entertained by the learned circuit judge, without success. The only authority cited to our attention applying any such view is Gallup v. Tracy, 25 Conn. 10, and that, as we have seen, does not support it. In Wilson v. Waltersville School Dist. supra, it is said that of the numerous decisions of the supreme court of Connecticut on the subject, Gallup v. Tracy stands alone in violating the common-law doctrine declared in Martin v. Lemon. Counsel lay great stress on Downing v. Rugar, 21 Wend. 178, but that, though an extreme case, goes no further than to hold that in circumstances like those before us the presumption that the absent member consented to the act of his associates should prevail in the absence of
It does not appear from the judge’s charge to the jury that the idea of ratification was indulged in upon the trial. The cause was rested solely upon the theory that if a majority of the committee agreed with respondent as to the purchase of the horse, that was sufficient on the question of whether a valid contract in that regard was made or not, irrespective of whether the third member of the committee had any opportunity to consider the matter. The learned ju.dge, consistent with his decision on the motion to direct a verdict, 'so erroneously instructed the jury. No claim is now made of any ratification by the committee of the unauthorized trans- • action by the two members, but it is suggested that the dis-
Complaint is made because of the exclusion of evidence regarding the condition of the horse some nine months prior to the transaction in question, upon the ground that the trial judge “would not feel authorized to say because the mare had rheumatism in August that she had it the following May.’’’ It seems that the learned judge fully appreciated that evidence of the condition of the horse as to soundness at the time-of the trade was vital to the defense of breach of warranty, and that the evidence rejected was relevant unless the time-involved was too remote. Whether such evidence was competent was a matter for the court to- decide. • Its determination could not be disturbed if reached legitimately, unless-manifestly wrong. Emery v. State, 101 Wis. 627, 647, 78 N. W. 145. The question of competency respecting evidence is always one of law to be solved by the court, while the-questions of the credibility and weight of evidence are matters of fact for the jury. If the test to- be applied in determining the first question was whether the evidence, if true, would in the mind of the trial judge establish the fact in controversy, it is obvious that the court, in ruling thereon, would often be called upon to determine questions of credi- • bility and weight. Such is not the test. If evidence^ in the judgment of the trial court, if true, will tend within reason
The instruction requested, to the effect that in judging of the credibility of plaintiff’s evidence the jury might properly consider his interest in the result of the trial, the temptation; under the circumstances to color his testimony favorably to-himself, and everything bearing on the subject, and give-such evidence such weight only as in their judgment it was-
By the Court. — The judgment is reversed, and the cause remanded for a new trial.