19 Wis. 552 | Wis. | 1865
By the Court,
It is objected by the respondent that the finding and decision of the court below cannot be reviewed in this court, because the matters of law and fact have not been properly incorporated in and brought to the
The first cause of action stated in the complaint is for damages which the respondent alleges that he has sustained in consequence of the non-fulfillment on the part of the state of a certain contract therein specified, which damages, it is claimed, the company assumed and became liable to pay. Now it being conceded, for the purposes of this case, that such a cause of action against the state did in fact once exist, which the company subsequently in some manner became legally liable to pay, the further question then arises, has not the statute of limitations run upon it? It is insisted by the counsel for the company that this cause of action is barred, even if it ever existed, and the objection appears to us insuperable. It is very obvious that if the company ever became liable to pay for any damages growing out of the failure of the state to perform its contract with the respondent, it must have incurred this liability when it was organized under the act of July 6th, 1858 (chap. 98, Laws of 1853, p. 92), and when, by virtue of the provisions of that law, it became the owner of the work known as the “Eoxand Wisconsin Improvement,” with all the rights and obligations of the state in reference thereto. It is claimed by the respondent that the company, by succeeding to the rights oí the state in respect to this improvement in July, 1853, thereby incurred this obligation. But this action was not commenced until the 29th day of March, 1860, after this cause of action was barred by lapse of time. It is, however, contended that there was some subsequent promise or acknowledgment of the debt on the part of the company, which takes it out of the statute. The particular matters relied on to show a subsequent promise or acknowledgment of this debt, are certain resolutions adopted by the board of directors of the company at their meeting July 6th, 1855, and July 12th of the same year. By the former resolution the chief engineer was requested to report to the board his opinion as to the fair
The third cause of action is for one hundred and eighty-three shares of stock belonging to the respondent, but used and appropriated by him for the use and benefit of the company. The proof is very satisfactory that the respondent advanced this amount of stock for the company; but the difficulty we find in affirming the judgment upon this point grows out of the fact that this amount of stock was to be returned to him. Now if he advanced this stock with the understanding that he was to receive a like amount of stock again, then it is very 'manifest that he cannot recover the value of the stock unless upon demand the company refuse to return it.
In the second cause of action, the respondent seeks to recover the value of his services as agent and superintendent of the company while managing its affairs, and his expenses in traveling about its business to various parts of the country. The referee found “ that ^between the first day of August, 1853, and the first day of July, 1856, the plaintiff, at the request of the defendant, acted as the agent and superintendent of the defendant in the care and management of the business of the defendant; and that such services were worth the sum of fifteen hundred dollars per year, and in the whole the sum of four thousand three hundred and seventy-five dollars; and that between the first day of July, 1856, and the first day of October, 1859, the plaintiff, at the request of the defendant, acted as vice president and acting director of the defendant, and was engaged as such in and about the business of the defendant, and that such services were worth the sum of fifteen hundred dollars per year, and in the whole the sum of four thousand eight hundred and twenty-five dollars; ” and that from August, 1853, to October, 1859, the respondent was entitled to recover the sum of one thousand and eighty-three dollars and thirty-three cents on account of traveling expenses, over and above the sum of two thousand dollars which had been paid him on that account. . This finding of the referee is amply sustained by the evidence in the cause. It is claimed by the counsel for the company that the respondent is estop-ped by his repeated declarations from insisting upon eompen-
The conclusion at which we have arrived is, that that part of the judgment of the circuit court confirming the report of the referee as to the second cause of action stated in the complaint must be affirmed, while the judgment in other respects is reversed.