Sharp v. City of Mauston

92 Wis. 629 | Wis. | 1896

Maeshall, J.

It appears to be conceded by the appellant that if, after the common council allowed respondent’s claim at $400, she accepted such action as a settlement, a binding contract was thereby made; and that if such facts appear by the complaint a good cause of action is stated. The demand in writing upon the city treasurer for the order, after the action of the council allowing the claim, before any proceedings were taken looking to a reconsideration of the matter, constituted an acceptance just as effectual as a writing in terms accepting the promise of the city to pay the sum allowed in settlement of the claim. Such demand was consistent with the theory of an unqualified acceptance, and inconsistent with any other; and, as the complaint states the facts in regard to such demand, all the facts appear requisite to show a complete and binding contract between the parties. Appellant’s counsel states correctly the law that an accord must be followed by a satisfaction in order to be binding; but that does not mean that parties cannot, by an executory contract, liquidate a disputed claim, so that such contract can be enforced by either party to it. All that is required in such a case is that there be an unconditional acceptance of the promise itself, and not the mere performance of it in satisfaction of the disputed claim. Such acceptance of the promise, when made, operates at once to substitute the new contract made by the mutual promises of the parties for the old contract or claim; and if such new contract is not performed the remedy is by action for a breach of it, and not on the original claim. Such is the effect of modern cases both in England and this country. Good v. Cheesman, 2 Barn. & Adol. 328; 1 Smith, Lead. Cas. (9th Am. ed.), 613; Evans v. Powis, 1 Exch. 601; 2 Parsons, Cont. 682, 683; Story, Cont. (4th ed.), § 982; Com. Dig. “ Accord,” (B, 1, 4); Billings v. Vanderbeck, 23 Barb. 546; Goodrich v. Stanley, 24 Conn. 613.

It is contended that the plaintiff does not state a cause of action under the contract, because, by the charter of the defendant city, no action can be maintained against such city till a claim shall have been filed ánd disallowed or the council shall have neglected to act thereon for a period of sixty days, and that it does not appear from the complaint that any claim under such contract was presented to the council before suit brought. "We do not think the charter provision applies to this case. Here a claim had been presented to the council, which was compromised and settled by mutual promises between the parties, by means of which the defendant became obligated to pay plaintiff $400. The auditing body thereby had full opportunity to act in the matter, fully satisfying the provisions of the charter in respect to its having such opportunity before suit brought.

It is further contended that, as the charter provides that no money shall be drawn from the city treasury except on an order signed by the mayor and clerk, the only remedy of the plaintiff is to proceed against the officers to compel them to perform their ministerial duty by issuing the proper order. That such remedy might be resorted to is sustained by High, Extr. Leg. Rem. § 351, and State ex rel. Fuller v. Martin, 27 Neb. 441, cited by defendant’s cotinsel. It is well settled that where, by the regulations of a municipal corporation, money in the treasury can only be drawn on an order signed by designated city officers, the duties of such officers are wholly ministerial, and the performance of such duties, upon refusal, may be enforced by mmidamus. State ex rel. Ahrens v. Fiedler, 43 N. J. Law, 400; Farley v. Whiteley, 14 Ark. 687; High, Extr. Leg. Rem. §§ 17,104, 105, 107, 351, 356, and cases cited. But the remedy by mandamus is not exclusive. The claimant may, if he sees fit, resort to a civil action against the municipality to recover the debt. State ex rel. Ahrens v. Fiedler, supra; Guilder v. Otsego, 20 Minn. 74; People ex rel. Reynolds v. Flagg, 16 Barb. 503; Buck v. Lockport, 6 Lans. 251; Raymond v. County Comm’rs, 18 Minn. 61; Apgar v. School Dist. No. 4, 34 N. J. Law, 308. In the last case cited, it was held that the claimant may proceed by suit at law against the corporation or by mandamus against the officers to compel them to perform their public functions, and that, in respect to corporations and ministerial officers, a party so circumstanced may elect to proceed either by mandamus or by an action at law. See, also, State ex rel. Van Vliet v. Wilson, 17 Wis. 687.

It follows from the foregoing that the order of the circuit court must be affirmed.

By the Court.— Order affirmed.