99 Wis. 585 | Wis. | 1898
This appeal turns on the question of whether the bond sued on is a valid obligation, and that is subdivided into whether the county board had power, under the circum
Appellants’ counsel assume that when the first bond was taken there were $14,354.51 of public money, either in the Shell Lake Savings Bank or the hands of its assignee, which belonged to the county in its own right or as trustee for the state, and that the county board loaned that money to the bank for one year in consideration of the bond to secure its ultimate payment. “ That was the sole consideration for the bond,” say counsel; and they again say, “The pivotal question is, Do county boards possess lawful power under our laws to agree that moneys received by the county treasurer for taxes shall be loaned for use by a bank or other private person, for a year or such time as they shall please to grant ? ” "When we view such assumed situation in the light of the undisputed facts of the case, as we understand them, the force of what we have already said, to the effect that right conclusions cannot be logically and safely reached unless we start with correct premises, is quite apparent.
At the time of the agreement to take the first bond, the county had a judgment against its treasurer and his bonds
True, if the county board possessed authority to take the bond, it must be found in an express statutory power, or some power necessarily incident to such an express power, and there ought to be no serious difficulty in pointing out its source in such an important matter. Ye will examine that question.
Sec. 650, E. S. 1878, provides that a county may sue and :be sued, and make such contracts and do such acts as shall be deemed necessary and proper to the exercise of the powers and privileges granted to, and the duties charged upon, it. Sec. 652, E. S. 1878, provides that the powers granted to a county shall be exercised by its county board. So whatever powers are incident to the right to sue and be sued, and the power to make whatever contracts and do whatever acts shall
The following from the opinion of Adams, C. J., in Collins v. Welch, 58 Iowa, 72, is along the same line as the foregoing, and appears to touch this case unfavorably to appellants at every point: “It is true that where a claim.has been reduced to judgment, all questions pertaining to the rightful
Under sec. 984, E. S. 1818, it Avas the duty of the chairman of the county board to prosecute the claim against the treasurer and his bondsmen to judgment, and to see that all
So we reason easily up to the conclusion that the county board possessed express authority to take the bond of the Shell Lake Savings Bank, with appellants as sureties thereto, if done in good faith and deemed necessary by the board in the performance of its -duties to collect the debt due from its treasurer and his bondsmen by realizing on the collateral claim against the bank. On the question of whether the board acted in good faith there can be no reasonable controversy, as that was in effect found by the court and was not excepted to. Not only good faith, but good business judgment, was exhibited by the board, if we are to test their conduct by the standard of ordinary prudence and business sagacity in the affairs of life.
But it is said there was no consideration for the bond;' that the recitals show that the only consideration was a loan
When we consider that the county was the owner of the claim against the bank as a mere collateral to the payment of the debt of its insolvent treasurer and his bondsmen, against whom all legal remedies had been exhausted, and that the bond was a means of securing the certain collection of such collateral claim, instead of a loan of money by the county to the bank, the arguments of counsel, made with such learning and ability on the latter theory, lose all their force. They do not touch the real situation, and we may safely say that upon the correct theory of such situation, that is, that the bond was given to secure the payment of a debt of doubtful collectibility upon the consideration that the debtor would be permitted to handle its property for the purpose of paying such debt instead of having that done by an as-signee and should have one year without interest to make such payment, there can be no question as to the sufficiency
There is a further point made that several members of the county board were interested as creditors of the bank in having it resume business; that, counting out such interested members, a sufficient number did not participate in the proceedings and consent to the arrangement whereby the bond was taken, to make the action of the county board legal. Whether the appellants, on the facts, in any event could raise that question may well be doubted, but it is sufficient for this qase to say that no defense on that ground was pleaded, or facts found by the trial court covering that situation, or exceptions taken to raise the question in this court.
The foregoing leaves nothing further that need be said. If the first bond was a valid obligation, and we hold that it was, the cancellation of it, and giving an additional term of one year to pay the debt of the bank, was ample consideration for the second bond, the one in suit.
By the Gourt.— The judgment of the circuit courtis affirmed.