Helms v. McFadden , 18 Wis. 191 ( 1864 )

By the Court,

Cole, J.

The. chief difficulty we have had with this case grows out of the delay of the respondent. The fair implication of the complaint is, that she was fully cognizant of the fraud of Miss Christie in procuring the certificate and in obtaining the contract from the school board, at or about the time it was committed. If she was apprised of the fraud when committed, she should have moved promptly in the matter, and not have waited until a greater portion of the services had been rendered. Miss Christie had taught something over two months before this suit was commenced. Now we must assume that Miss Christie obtained the certificate from the superintendent, and the contract, through fraud and misrepresentation, as stated in the complaint. But notwithstanding all this, if the tax payers of the district were cognizant of the facts, and, knowing that she was incompetent, permitted her to go on and teach the school until the contract was nearly fulfilled on her part, ought they then to say she should not be paid for the services rendered? It appears to us that under such circumstances they ought to’ be held to have acquiesced in the fraud. The law provides a very summary way for annulling a certificate improvidently granted. If Miss Christie obtained a certificate from the superintendent through fraud and deception, he would doubtless have promptly recalled it on a proper representation of the facts to him. No steps were taken by any one interested in the school to have the certificate annulled. Nor were any proceedings taken to set aside the contract made by the district board with her, and to restrain the payment of the wages, until the contract had been nearly performed by the teacher. What other inference can be drawn from all this than that the respondent was guilty of unreasonable delay in applying for relief? That she suffered the teacher to go on in the performance, of the contract until she had taught the school for more than two months, and then objects to her having any compensation for her services? It appears to us that this does not furnish a very strong ground for the equitable interference of a court. The complaint should show that the appellant was guilty of no delay ; that she did not in any manner acquiesce in the fraud, but moved promptly to redress it as soon as it was discovered. As the complaint does not show this, but rather authorizes a contrary inference, we think it defective in substance for not stating facts sufficient to constitute a cause of action.

The order of the circuit court overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.