Lauenstein v. City of Fond du Lac

| Wis. | Jun 15, 1871

Lyoh, J.

Tbe action is to recover damages for tbe alleged breach of tbe covenants of a written contract set out in the complaint. Tbe substance of sucb contract is, tbat tbe plaintiff agrees to sell and tbe defendant to purchase certain premises therein described, situated within said city, for eighteen hundred dollars, to be paid January 30th, 1870, with seven per cent, interest; and on payment being so made, tbe plaintiff agreed to convey said premises to tbe defendant, by deed with full covenants, free and clear of all liens and incumbrances. Tbe contract bears date October 1st, 1869, and by its terms gave tbe defendant immediate possession of the premises. It purports to bave been executed by tbe plaintiff, and by three other persons who style themselves tbe “ Board of Public Works of tbe Oity of Pond du Lac.”

Tbe complaint alleges tbat tbe three persons last mentioned were, when sucb contract was executed, a board of public works in and for said city; tbat they made sucb contract for and on behalf of tbe defendant; tbat they were authorized and empowered by tbe defendant to do so ; tbat since tbe execution of tbe contraot tbe defendant has fully ratified it; tbat it has been duly countersigned by tbe comptroller of tbe defendant; and'that the-premises described therein were purchased for a school house site. The plaintiff, in his complaint, avers readiness to perform the contract on his part; charges that the defendant refuses and neglects to perform it on its part; and demands judgment for $1,800 and interest. The defendant interposed a demurrer to this complaint, assigning as ground thereof that the complaint does not state facts sufficient to constitute a cause of action.

Erom an order of the circuit court overruling such demurrer, the defendant appeals to this court.5.

We are clearly of the opinion that the complaint fails to state a cause of action against the city.

The only specific power to purchase land for school house sites, conferred upon the defendant by law, so far as we are able to find, is contained in section 6 of chapter 18 of the city charter. Private and Local Laws of 1868, chapter 59, p. 143. It is there provided that the board of education shall have the power, by and with the consent of the common council, to buy sites for school houses in said city. It was doubtless the intention of the legislature to require the concurrence of both bodies, the board of education and the common council, in the purchase of land for a school house site. The general power to purchase land for the necessary purposes of the corporation, which is given to the defendant by section 2 of chapter 2 of its charter, doubtless includes, in the absence of any other provision on the subject, the power to purchase the same for school house sites; but it is quite evident that such general power must be exercised, in any given case, in the manner provided by law, where there is any special provision of law on the subject. In respect to the purchase of land for a school house site, there being such special provision, the purchase must be made in ..accordance therewith, or the city is not bound.

The-complaint does not aver that either the board of educa•tion or the common council have had anything to do with the .alleged contract of purchase, or any connection with it.

It is true, the complaint states that the members of the board of public works, wbo made this contract on bebalf of tbe city, were authorized by tbe city to make it, and that, since tbe execution of it, tbe city bas fully ratified it; but we are not informed as to tbe manner in wbicb sucb authority was conferred, or by what acts sucb ratification was accomplished.

"We have not bad tbe benefit of an argument or a brief on bebalf of tbe plaintiff; but we have examined tbe charter of tbe defendant with considerable care, and have found no provision wbicb permits tbe board of education and tbe common council to delegate to tbe board of public works tbe power to purchase a school bouse site. If tbe charter contains any sucb provision, we have overlooked it Without sucb provision, we are at a loss to understand bow tbe power can be so delegated. As at present advised, therefore, we do not think tbe allegation that tbe board of public works bad full power and authority to enter into tbe contract in question on bebalf of tbe defendant, bas any force or significance.

If tbe defendant bas done acts since tbe execution of tbe contract wbicb are a legal ratification thereof, tbe well settled rules of pleading seem to require that sucb acts should be set out in tbe complaint.

We think tbe demurrer should have been sustained. Tbe order overruling it must be reversed, and tbe cause remanded for further proceedings according to law.

By the Court. — It is so ordered.