217 Wis. 306 | Wis. | 1935
The first question presented is whether paragraph 1 of the complaint, setting forth the first cause of action, sufficiently alleges a contract between appellant and respondent, whereby respondent was to assume managerial duties in the cafeteria and appellant personally was to pay her salary. For the purposes of this assignment, we do not deem it necessary to discuss, consider, or express any opinion, (1) upon the question whether the fact that in a verified complaint the allegations in one count or paragraph are in point of fact inconsistent with those in another paragraph, renders the complaint subject to demurrer; (2) whether this court should take notice of the fact that in previous actions arising out of this same transaction or based upon it, respondent under oath alleged the contract, not with appellant personally, but with the state, and that there should be some sort of estoppel by record under the doctrine of Kaehler v. Dobberpuhl, 60 Wis. 256, 18 N. W. 841; or (3) whether the doctrine of Butler v. Mitchell, 15 Wis. *355, to the effect that a
It is alleged that appellant, at all the times referred to in the complaint, was president of the Milwaukee Normal School, and that respondent, during these times, was an instructor in this school. The complaint recites the predicament created by the fact of a growing deficit in the cafeteria, one of the state-supported activities of this school, and the fact that appellant asked respondent to manage the cafeteria temporarily. The complaint alleges that some later time respondent, learning that' appellant proposed to continue her cafeteria services indefinitely, requested pay for these services, and “defendant promised to pay plaintiff and stated to plaintiff that she would receive her first check after Christmas of 1926that, when respondent again requested her pay, appellant said he was short of money, but always promised respondent she would be paid. The complaint concludes with a statement as to the reasonable value of respondent’s services and the demand for judgment against appellant.
It requires only a casual study of the complaint to discover the equivocal character of these obligations. “Defendant
The argument of respondent runs about like this: Appellant had no semblance of authority to hire a cafeteria manager. His motive and purpose in appointing.respondent was to avoid official censure because of the large and growing deficit in the cafeteria; that he proposed to do this by hiring respondent, and that, in the absence of any authority so to engage her, he is, as a matter of law, acting as principal and not as a public agent. Respondent’s argument is ingenious, but on closer examination unsound. It is beyond question that
These conclusions make it unnecessary to discuss the further question whether there is in this cause of action a sufficient allegation of consideration or whether, as may quite easily be contended, there is not merely a description of appellant’s motives.
The second cause of action is based upon an allegation that the appellant falsely, by his conduct and action, represented that he was duly authorized by the board of regents to hire respondent as cafeteria manager. The facts from which a plaintiff’s primary right and the defendant’s corresponding duty arise must appear in the statement of the cause of action together with the facts showing a wrong by defendant. In considering the sufficiency of the allegations of a complaint, the presumptions of law that surround a transaction must be taken into consideration and given their due weight. Where, under the rules applicable, the facts stated show that the plaintiff cannot recover, no cause of action has been stated. The facts disclosed in this cause of action are that respondent had been hired as an instructor by the board of regents; that she knew that the cafeteria was an enterprise conducted in connection with the school in which both herself and the appellant held positions; that such authority as the appellant had was fixed by law; that he did not sustain a personal liability toward the cafeteria; that the position of manager of the
The proposition that an agent acting in excess of his authority is personally liable to an injured third party for his deceit does not affect this cause of action under the facts alleged. If there was an attempt on the part of the appellant to misrepresent his authority under the law, respondent knew or is charged with the knowledge of it, had no right to rely upon such representation, and could not have been deceived or misled by it. The facts alleged and the accompanying rules of law to be applied in relation to the liability of the appellant and the knowledge on the part of respondent of his position and authority, disclose a situation out of which no cause of action can arise in favor of respondent. It amounts to this: The parties talked over the matter of management of the cafeteria with a view of re-establishing it on a sound financial basis. Whether respondent was willing to perform gratis the extra work required of her in connection with the management is not a controlling element. The arrangement left the matter of compensation open and undetermined. The reduction in funds available to the institution, caused by forces over which neither respondent nor appellant had control, interrupted a plan and disappointed the hopes of respondent without creating any liability on the part of appellant. This leaves the respondent without grounds for recovery.
The third cause of action is controlled in a considerable measure by the same rules and considerations which apply to the second cause of action. It is for breach of implied war
We are of the opinion that the court below properly sustained the demurrer to the fourth cause of action. In the effort to prevent the evasion of civil service laws, no person employed contrary to the provisions of secs. 16.01 to 16.30, Stats., is entitled to be paid out of the usual funds alloted to such position. In the event that such an evasion of the law has occurred, the appointing official is required to pay the compensation agreed upon under such appointment, or, in case no compensation is agreed upon, the actual value of such services and any expenses incurred in connection therewith. This constitutes a cause of action against such officer or officers. Secs. 16.01 to 16.30, Stats. The case at bar does not come within the sections cited. No appointing officer having the power to appoint attempted to make an appointment to the position for which respondent asks compensation.
By the Court. — That part of the order of the circuit court overruling the demurrers to the first, second, and third causes of action is reversed, that part sustaining the demurrer to the fourth cause of action is affirmed, and cause remanded for further proceedings according to law.