#### Town of Beloit, Appellant, vs. Heineman, Respondent.

*April 19*

May *8, 1906.*

*Pleading: Matter in abatement: Waiver: Towns: Authority to sue: Power to malee lease: Estoppel of lessee: Appeal: Reversal: Direction of judgment.*

1. In an action by a town to recover money alleged to be due it on contract, the objection that the electors did not in town meeting authorize the bringing of the action goes wholly in abatement, and, unless expressly pleaded, is waived.

2. One who, under a lease from a town, has used its property cannot question the power of the town to make such lease in order to repudiate his agreement to pay for what he has received thereunder.

3. In an action by a town for rent of a stone crusher and for the cost of repairs thereon which defendant had agreed to pay,.the complaint alleged the cost of such repairs to be $253.10. The jury found that the cost of such repairs was $263.85. On reversal of a judgment erroneously rendered against the town, judgment is directed for the rent and for the cost of repairs as alleged, the evidence establishing the larger amount not having been so admitted without objection as to justify treating the complaint as amended in that particular.

Appeal from a judgment of the circuit court for Rock -county: B. E. Durtwiddie, Circuit Judge.

*Reversed.*

The complaint alleges leasing by plaintiff to defendant of a certain stone crusher on November 4, 1902, upon an agreement by the latter to pay for its use $4 per day and to keep same in good repair, and that defendant used said machine until a certain date in May, when, on examination, it was found to be in very serious disrepair, dangerous to its existence if used, and protest was made against its further use, whereupon defendant agreed that, if permitted to use it without interruption, he would put it in first-class condition. Claim is made for $140 of rental and $253.10 costs of necessary repair paid by the city. The answer admits that the machine belonged to the city, but alleges that it was hired from *399one Powers in November, 1902, who then was chairman of the town hoard, and that the hiring and use was completed and paid for, and that again in April, 1903, the defendant rented the machine from Powers at $4 per day, and denies any agreement to repair or that it got out of repair by reason of any misuse of the defendant, and denies the alleged later agreement to put the machine in good condition, and then sets up that the contract of leasing on the part of the town was *ultra vires*and void.

Upon the trial objection was made to any evidence under the complaint for the reason that ño action of either the electors in town meeting or formal action by the town board had been taken to authorize the bringing of the suit. Evidence was taken, followed by a special verdict to the effect (T) that the machine belonged to the town; (2) that the November, 1902, agreement was performed and payment made; (3, 4) that another agreement was made in the spring of 1903 for $4 a day and the making of all repairs; (5) that the machine was then out of repair, especially in that the axle was defective and sprung; (6) which caused, in operation, other injuries to the crusher; (I) the cost of repairing which was $263.85; (8) that the crusher got out of repair in the spring of 1903 otherwise than by ordinary wear, by reason of carelessness and negligence of the defendant; (9) that the expense of repairing the damages caused by such carelessness and negligence was $263.85; (10) that defendant, in consideration of being allowed to complete the use he desired of the ■crusher, agreed that he would have the same repaired and placed in the best possible condition satisfactory to the plaintiff; and (11) the expense of so doing was $263.85. It was admitted that the crusher was used in the spring of 1903 for eighteen days. It appeared that all the town supervisors participated in bringing the suit, but there was no record of any formal meeting or vote to that effect. It was conceded that no authority had been given at any town meeting.

*400After tbe entry of tbe verdict tbe plaintiff moved for judgment upon tbe verdict and undisputed evidence for tbe $263.85 and $72 of rent. Defendant moved tbat tbe verdict be set aside and tbe complaint dismissed, for tbe reason tliat tbe same failed to state a cause of action or facts sufficient to support a judgment, and failed to sbow tbat tbe action was directed by tbe electors of tbe town ox tbat tbe town board took any official action witli reference thereto, and, in fact, affirmatively showed tbe contrary, and because tbe verdict was contrary both to law and to tbe evidence. Defendant also moved for a new trial on various grounds. Tbe court held tbat, by reason of tbe absence of any authority from tbe electors to institute tbe suit, tbe complaint and evidence were insufficient to give the court jurisdiction, and therefore set aside tbe verdict and entered judgment dismissing *the*complaint, without prejudice to plaintiffs right to bring another action, and without costs. Erom such judgment plaintiff appeals.

Eor tbe appellant there was a brief by *T. 8. Nolan*and *John Cunningham,*and oral argument by *Mr. Cunningham.*

Eor the respondent there was a brief by *0. A. Oestreich*and *Edward H. Ryan,*and oral argument by *Mr. Oestreich.*

Dodge, J.

Tbe contention of respondent, made as demurrer *ore terms,*which prevailed with tbe trial court, that this action must be dismissed because it did not affirmatively appear tbat tbe electors in town meeting had authorized tbe commencement of this action, came altogether too late. Tbe cause of action presented was on contract to recover tbat which tbe defendant had promised to pay for tbe use of tbe town’s property. It was entirely a common-law cause of action, upon which tbe town, under its general corporate powers to sue and be sued, could maintain action except for some statutory limitation. I'f it be true, as argued, tbat a vote of tbe electors was a necessary preliminary to tbe bringing of a suit, an ob*401jection to tbe action on that ground went wholly in abatement. It did not deny tbe indebtedness of tbe defendant to tbe town nor existence of tbe cause of action, but raised an obstacle wbicb, until removed, postponed tbe right to commence tbe suit. This is distinctively matter in abatement, and, unless expressly pleaded, is waived. *Milwaukee Co. v.*Hackett, 21 Wis. 613; *Johannes v. Youngs,*48 Wis. 101, 4 N. W. 32; *Milwaukee v. Herman Zoehrlaut L. Co.*114 Wis. 276, 90 N. W. 187; *Bunker v. Hudson,*122 Wis. 43, 53, 99 N. W. 448. Tbe further objection wbicb was not passed on by the trial court, that there was neither allegation nor record proof of formal resolution by the town board to institute the action, is exactly of tbe same character and ruled by tbe same considerations.

Another contention, not reached by tbe trial court, is that a contract to lease to defendant tbe stone crasher was beyond tbe corporate power of the town, and that, even if within such power, it was not within the powers delegated by law to tbe town board or any member or members thereof. Whatever limitations may have existed on tbe power of tbe town or on the town board or its officers to confer upon an individual tbe right to use such machine, they are entirely immaterial to tbe defendant, who has actually enjoyed that privilege under an attempted contract. No limitation rested upon his ability or power to agree to pay for such use, and be, having received all the benefits of such a contract as if it were valid, cannot now question its validity in order to repudiate bis agreement to pay a price for that which be has received. *Farmers’ & M. Bank v. Detroit & M. R. Co.*17 Wis. 372; *Bullen v. Milwaukee T. Co.*109 Wis. 41, 44, 85 N. W. 115; *Security Nat. Bank v. St. Croix P. Co.*117 Wis. 211, 94 N. W. 74; *Madison v. American S. E. Co.*118 Wis. 480, 95 N. W. 1097.

These views, resulting, as they do, in a legal liability of tbe defendant to respond for tbe price be agreed to pay for tbe use of this machine wbicb be has bad, render immaterial nu*402merous other questions argued by counsel, sucb, for example, as whether the town board can institute a suit of this character without the vote of the electors, whether their decision so to do must be matter of record and proved by the record, whether it is to be presumed in absence of evidence, and whether either the town or its officers can rent such a machine.

The remaining’ question is whether a new trial is necessary, or whether, upon the facts found by the jury, judgment should have been entered in favor of the plaintiff. The verdict finds that in April, 1903, defendant promised to pay $4 a day for the use of the machine. Indeed, the answer so admits. Defendant’s foreman himself testified that he used it eighteen days, which, at $4 per day, amounted to $12. Hence the *■per diem*rental to that amount was undisputed. As to the defendant’s liability for repairs, we confess there is some confusion upon the face of the verdict, which finds, first, that damage costing $263.85 to repair was proximately caused by a defect in the crusher, for which it might be argued defendant was not responsible, and then finds that exactly the same amount was required to repair damages caused by defendant’s carelessness and negligence while using the machine, thus at least suggesting a doubt whether the jury had not found that the same injury was proximately caused by the ancient defect in the machine and also was caused by carelessness or negligence of the defendant, upon which view respondent insists the verdict is inconsistent. Nevertheless, by the tenth question, the jury also found that a new agreement was made by the defendant that, in consideration of being permitted to complete his work with the crusher, he would pay all expenses of putting it in best possible condition and entirely satisfactory to the plaintiff. There was evidence to support this finding, to the effect that about May 1, 1903, such agreement was made. Upon this last contract defendant’s liability for such necessary expenses was complete, irrespective of whether they had been rendered necessary by an original defect in the ma*403chine or by bis mismanagement of it. The amount of the repairs so rendered necessary is again found to be $263.85, and is supported by the evidence, but not by the allegations of the complaint, 'which assert only expense to the amount of $253.10. It cannot be said that the evidence establishing .the larger amount was so admitted ■without objection as to justify us in treating the complaint as amended, and judgment upon the verdict must, therefore, be limited to the amount prayed in the complaint, together with interest from the date of the commencement of this suit.

*By the Court.*— Judgment is reversed, and cause remanded with directions to enter judgment in favor of the plaintiff for the sum of $325.10 and interest from date of commencing suit, and for costs.