Citation Numbers: 45 Minn. 549
Judges: Dickinson
Filed Date: 4/2/1891
Status: Precedential
Modified Date: 9/9/2022
The facts upon which this action is founded, as shown by the case, are as follows: In 1878 a special law was enacted by the legislature (chapter 126) in terms authorizing certain towns, including that of Lake Henry, to issue town bonds for the purpose of raising money to supply seed wheat to sufferers from the ravages of grasshoppers. Pursuant to that act the bonds of the town of Lake Henry were issued, payable to this plaintiff, to the amount of $2,500, and the defendants were designated and acted as a committee or agents of the town for their negotiation. The plaintiff purchased the bonds at their face value, paying that sum to the defendant Heisler, who expended all of it, excepting $56, in the purchase of wheat. The $56 was used by Heisler for his expenses incurred in procuring the wheat. The wheat was distributed, and promissory notes for payment were taken from the persons to whom it was supplied. These notes amounted to $2,500, and were payable either to the town or its committee, or else to the committee alone. Collections were afterwards made by the defendants on these' notes, and the proceeds paid to the plaintiff, to be applied on the bonds. Of the amounts collected on these notes, however, $200 was retained by
The plaintiff, in his complaint, alleged that the legislative act authorizing the issuing of these bonds was unconstitutional and void, and that the bonds were for that reason void; and at the trial the court in effect so instructed the jury. To this neither party took exception. It is apparent that the case was tried and determined upon that theory, both by the parties and by the court; but now, on this appeal, the plaintiff contends that the law was not unconstitutional, and asks that it be so determined by this court. The question is not properly involved in this appeal, and we do not decide it. The plain; tiff must be taken to have asserted and conceded, for the purposes of the trial and determination of this action, that the law was uriconstitutional, and the bonds invalid; and, the court having disposed of the case upon that theory, the plaintiff cannot now, and in the same action, ask that the opposite view be adopted as a premise from which to claim that the trial and determination were erroneous. What was thus conceded by the parties and ruled by the court is to be taken as the law for the decision of the case. We therefore assume that the bonds were invalid because of the act authorizing them being unconstitutional.
The further contention between the parties is as to whether, the bonds being void, the plaintiff is entitled to recover from the defendants the purchase-money paid therefor. The claim of the plaintiff is that he is so entitled to recover on the ground of a failure of consideration. No such legal liability can be deemed to rest on the defendants under the circumstances of this case. Otis v. Cullam, 92 U. S.
The verdict of the jury having been against the defendant Heisler alone, the court granted the plaintiff’s motion for a new trial as to the other two defendants, Winter and Wendeler, contingent, however, upon their neglect to file a stipulation consenting that judgment for the sum awarded against the defendant Heisler be entered also against them. In behalf of those two defendants, (who are treated in both briefs as appellants, although the record does not show any appeal by them,) it is urged that the evidence would not have justified a conclusion that they received or had the benefit of any of the money which is the basis of the recovery against Heisler. To the extent of the $200 involved in the recovery there was evidence reasonably tending to show that it was used for the common benefit of all the defendants, and under the rule in Hicks v. Stone, 13 Minn. 398, (434,) and many other decisions following that, the order should be affirmed.
Order affirmed.
Mitchell, J., being necessarily absent when this decision was filed, did not participate therein.