#### Calkins and another vs. The State.

The practice of settling a case or bill of exceptions for the purpose of bringing before and reviewing in this court the proceedings had at the circuit on the trial of issues of fact sent from this court, is authorized by section *á*of chapter 157 of the Revised Statutes, and correct.

One party to a contract in writing may estop himself from taking advantage of it, or perpetrate a legal fraud upon the other party thereto, as well by false and fraudulent representations as to the meaning of the words used in such contract, as to any other matter or thing which constitutes the inducement or consideration for its execution; provided such words are material to a proper understanding of their agreement, and the other party, being ignorant of their true meaning and use, relies and acts upon such representations to his injury. In such case the minds of the parties have never met upon the contract as written.

Since the decision of the case of *Sholes vs. The State,*2 Chandler, 197, the acceptance, by a creditor of the state, of a sum of money in pursuance of an act of appropriation by the legislature, which appropriation purports to be in *full*payment of a demand, some portion of which was controverted or disallowed, is a bar to any further prosecution or claim on account of such demand, in cases where there is no evidence of fraud, accident or mistake in matter of fact.

The contract for doing the state printing for the years 1855 and 6, was let, by the proper state officers, to Beriah Brown, as the lowest bidder. Brown assigned Ms interest to *Calkins*and *Proudfit,*who filed their complaint in this court, against the state, to recover money alleged to be due to them for work performed under the contract; and certain issues of fact between the parties were certified to the circuit court for Milwaukee county for trial by a jury. The verdict of the jury was returned to this court, and the plaintiffs moved for judgment upon it.

On the trial in the circuit court, exceptions were taken by the attorney for the state, to the admission and to the rejection of testimony, and to the giving of certain instructions asked by the plaintiffs, and to the refusal to give certain instructions asked for on the part of the- state. The issues between the parties, and the questions presented by the exceptions, are sufficiently stated in the opinion of the court.

*H. S. Orton*and *J. H. Knowlton,*for the plaintiffs.

*J. H.*Howe, Attorney General, for the state.

March 12.

*By the Court,*

DixoN, 0. J.

The practice adopted in this *390casei 0f settling a bill of exceptions or case for tbe purpose bringing before tbis court tbe proceedings bad at tbe circuit, is correct. If it were not npbeld by section 4 of chapter 157 of tbe Revised Statutes, entitled “ of actions against tbe state,” wbieb declares that “tbe circuit court shall proceed to try, by jury, as in other cases, tbe said questions of fact, subject to tbe laws, rules and regulations of said court,” we should still be inclined to sustain it, as a general regulation indispensable to tbe administration of justice in such cases. "Without such practice it might often happen, as would be tbe case in tbis instance, that some of tbe issues of fact framed under tbe direction of tbis court, might be disregarded altogether, and testimony having a most important bearing upon others be improperly excluded from tbe consideration of tbe jury, and yet tbe party aggrieved be without any certain and adequate remedy. Tbe practice of taking and settling exceptions in other causes tried in tbe circuit courts, for tbe purpose of a review in tbis court, is well settled, and, under tbe provisions of tbe statute, must be held applicable to cases like tbe present.

Two objections are mainly urged against tbe granting of the present motion for judgment upon tbe special verdict returned by tbe jury. One is, that tbe circuit court erroneously withheld from tbe jury tbe consideration of tbe questions of fact presented by tbe amended answer, relating to tbe alleged misrepresentations of the bidder Brown, as to tbe meaning to be attached to tbe words *“folding*and stitching, *50*cents per 100,” contained in bis bid, which constituted tbe foundation of tbe present contract. All testimony and offers of proof upon that subject were excluded. In answer to tbis objection it is contended, first, that tbe matters thus set up are immaterial and unavailable in law as a defense, for tbe reason that fraud cannot be predicated of false representations made by one contracting party to another as to tbe signification of words used by them in their contract; and, secondly because tbe jury have found that tbe statements averred to have been made by Brown were true in point of fact. Tbe last position proceeds from a mistake on tbe part of tbe counsel. Tbe amended answer avers that *391Brown stated and represented that the true and actual meaning of the words was fifty cents per 100 volumes or ments, and that they did not and could not be understood to mean fifty cents per 100 signatures or sections as is now claimed by the petitioners. The jury have found that they had a known and technical signification among printers and book binders, which was fifty cents per 100 signatures or sections, thus showing that the statement of Brown, if made as alleged, was false. The other position, that the statements, if falsely made as charged in the answer, are incompetent as a defense, was decided adversely to the petitioners at the time leave to file the amended answer was granted. The answer avers that Brown was a printer by profession, and well knew the technical signification of the words, if they had any, and knowing the same, made the statements alleged, and that the state officers whose duty it was to decide upon and award the public printing to the lowest bidder, were “misled by his false representations.” It farther avers that in view of the terms of the several bids which had been received, the signification of these words became and was material, for the purpose of determining whether or not that of Mr. Brown was the lowest, and that if the officers had not accepted and relied upon the meaning given by him, the contract would and must have been awarded to another, whose bid was lower than that of Mr. Brown, according to the construction which is now sought to be placed upon it. It also alleged that the officers were ignorant of the technical or peculiar meaning attached to the words by printers and binders of books, and that in awarding the contract they relied upon the truth and correctness of the statements thus made. The statements are averred to have been known to the petitioners at the time they took the assignment of the contract, and they are insisted upon as constituting a defense to the charges for folding and stitching, partly on the ground of fraud, and partly on that of estoppel. We do not think it very material" upon which ground the pleader places it, though it seems to us to be more properly placed on that of fraud, being of opinion now, as we were on the former occasion, that such statements, *392^ ma(ie,. ought to conclude the party making them the one ground or the other. We see no substan-reason for saying that a party may not perpetrate a legal fraud, or estop himself from taking advantage of a contract, as well by a false and fraudulent representations as to the meaning of the words used in the contract, as to any other matter orbing which concerns and enters into the inducement or consideration of it. And for this purpose we do not think it material whether the words are such as are commonly used and generally understood, or such as are not so used, but have a special or technical signification with a particular craft or profession. In either case, if one party, himself knowing the meaning of the words and the sense in which they will be understood in the contract, and knowing that the other is ignorant of such meaning and sense, falsely states to the other that they have some other or ''different signification, such statement, if believed and acted upon by the jDarty to whom it is made, to his injury, amounts *to*a fraud in the law. The only distinction which can be made between words in common use and terms of art or special application, arises from the greater degree of probability afforded by the former that the party was not unacquainted with their meaning, and therefore not misled or deceived. Ignorance of the true meaning and use of words, whether on the part of public officers or others, however much it is to be regretted and discountenanced, and learning encouraged, has not yet come to be a crime on account of which they are to be outlawed or subjected to gross and palpable frauds and imposition. We do not understand the practicing of frauds upon the ignorant or unwary to be the part and mission of superior learning and ability. We are therefore of the opinion that this objection is well taken, and that it constitutes a sufficient reason for denying the motion. The state should have had the opportunity of proving the false representations, if made; but if they were not, and the allegations in that respect were unfounded, as is claimed by counsel, and as may well be, the jury would have so found, and counsel would have been relieved from making statements upon which it is known we cannot act. If the officers were de*393ceived as to tbe signification of tbe words, then tbe contract as expressed is not tbeir contract, nortbat of tbe state. minds of tbe contracting parties never met.

Tbe other objection is, that tbe petitioners, by accepting tbe sum of $11,074 83 appropriated by tbe act approved October 6tb, 1856, and wbicb tbe act recites as being “tbe amount in full due to them for state printing up to tbe first day of Sept., 1856, as per account rendered,” and tbe sum of $11,376 26 appropriated by tbe act approved February 27th, 1857, “ being payment in full for printing done for tbe state of Wisconsin from September 1st, 1856, to January 1st, 1857,” at wbicb last mentioned time tbeir contract expired, are concluded from making or setting up any further claim or demand against tbe state. If this question bad not already been settled *in this state so as to govern our discretion, we should, under tbe circumstances of this case, have little doubt as to its determination.' In tbe case of *Sholes vs. The State,*2 Chand., 197, where Sholes brought bis action against tbe state to recover a part of tbe price for printing and binding certain books, after having accepted and drawn from tbe treasury tbe amount of an' appropriation wbicb in its terms was to be *in full*for tbe books, tbe court held that be was estopped from setting up any further claim. To tbe argument drawn from that circumstance tbe com! say that they bad beard no answer, nor was it perceived bow any could be given; that as between man and man it admits no question, and that tbe circumstance of one of tbe parties being a state, cannot affect tbe matter in tbe slightest degree; that an individual contracts with bis state, not as bis sovereign, but as be would with any other municipal power, or with an individual ; and having, with a full knowledge of tbe facts, received compensation in full, it is impossible that such a contract constitutes an exception to tbe rule by wbicb a party is concluded by bis acceptance in full, when there is no pretense of fraud or mistake; that such were tbe terms upon wbicb tbe appropriation was made, and such tbe terms upon wbicb tbe money was drawn from tbe treasury; and that there could have been no mental or other reservation on tbe part of tbe plaintiff wbicb could in any way bind tbe state. *394gucb baying been tbe construction and effect given to.an act (Session Laws, 1850, p. 112), precisely like those under consideration, and tbe latter baying been passed after tbe former bad been tbus judicially interpreted, it is impossible for us to say, or for tbe petitioners to set up or claim, tbat tbe legislature did not intend tbat tbe same force and effect should be given to their language when subsequently repeated on a like occasion, and apparently for a like purpose. On tbe contrary, tbe conclusion is irresistible tbat it was used for tbat purpose and to accomplish tbat identical end. Tbe construction which bad tbus been put upon tbe language being matter of law, with a knowledge of which tbe petitioners were chargeable, they cannot be relieved from tbe effect of their acceptance of tbe money, unless it be for fraud, accident or mistake in fact, neither of which is pretended.

Without saying tbat tbe doctrine of *Sholes vs. The State*can or ought to be applied to every case where the payment of a sum of money has been received and acknowledged as full satisfaction for a pre-existing indebtedness, we may say tbat we have no doubt of its correctness when applied to cases like tbe present, where it appears tbat tbe liability or amount due was in dispute, and tbe offer was made with a view to a final settlement of tbe controversy. Tbe cases where tbe payment of a less sum is said to be no satisfaction of a greater, are those in which tbe amount actually due was clear and undisputed, and where tbe party paying made no claim tbat be was liquidating tbe entire debt. To this rule, which has been considered by many as somewhat technical and unfounded, and tbe application of which courts have been rather disposed to restrict than extend (14 Wend., 119 ; 2 Met., 285), there are many exceptions (20 Conn., 561). Tbat such offer and acceptance constitute a complete bar in all cases where there exists a *bona fide*controversy as to tbe liability or amount due, or where tbe claims are of an un-liquidated or uncertain character, and proper matters for judicial investigation as well as compromise and adjustment, will, we think, be found to be sustained by tbe following adjudications : 7 Cow., 231; 4 Denio, 166; 16 Vt., 329; 21 *395id., 222 ; 29 id., 230 ; 26 Wend., 39. The reasons given fox holding that a tender coupled with any conditions or fications is bad, seem also strongly to support this doctrine. They are that the tender must be so made that the party to whom the money is offered may accept it without thereby compromising his future claim to more ; that his acceptance may not be construed into an admission of the truth of the condition upon which it is offered. 11 E. C. L., 117 ; 34 id., 294, 380 and 530.

We make no question that by the word “printing,” as used in the acts' of appropriation, is to be understood all tht work performed by the petitioners under the contract. We have no doubt that both they and the legislature so understood it at the time. Nor do we think it was necessary to the validity of the acts that they should'be published. They are not public or general laws, within the meaning of the constitution. They constitute no rule or guide for the conduct and action of the citizen, so as to bring them within the intention of the framers of that instrument.

Motion denied.

Upon the filing of the above opinion, the plaintiffs moved the court to send the case to the circuit court for Milwaukee county, for trial of the issues, 1. Was there a controversy between the state and the plaintiffs as to what amount the plaintiffs should have upon the respective bills presented by them for allowance, or upon any, and which of them, and were the respective sums or any, and which of them, appropriated to the plaintiffs, appropriated to settle such controversy and claim? 2. Did Beriah Brown make the statements and representations at the time of letting to him the printing contract, as alleged in the amended answer of the defendant?

On the 11th of December, 1861, the motion was overruled in the following opinion:

*By the Court,*

Paute, J.

Since the decision of this court, denying the plaintiffs’ motion for judgment on the verdict of the jury, the plaintiffs’ counsel have filed a motion to send the case back to the circuit for the trial of the remaining is*396sues of fact. One of those issues, and we tbink the only one, was whether Brown, the assignor of the plaintiffs, made the fraudulent representations alleged in the answer. "We can well understand how the state might have insisted on a trial of this issue, if we had been of the opinion that the plaintiffs were entitled to judgment on the verdict upon the others. But it is difficult to see how the plaintiffs can insist on it, when we have already determined that the verdict of the jury upon the issues which have been passed on, negatives any right of action on their part. If the issue concerning the making of those fraudulent representations should be found in their favor, it could not change the result. It would only show that an alleged additional reason for denying their motion for judgment did not exist. The evidence upon this issue was excluded on the former trial upon their objection; and although it might be good ground for a new trial on the part of the state, it is clearly none on the part of the plaintiffs.

The motion asks also to have the issue tried, “whether there was a controversy between the' state and the plaintiffs, as to what amount the plaintiffs should have upon the respective bills presented by them for allowance,” &c. We do not understand that any such issue is made by the pleadings. On the contrary, it appears fully by the pleadings on both sides, as well as by the verdict, that there was a controversy between the state and the plaintiffs as to the amount the plaintiffs were legally entitled to. The complaint avers that the several bills of the plaintiffs were presented to the legislature, and that certain portions were disallowed. In one instance it is alleged that the bill was “ wholly disallowed,” “ on the ground, as taken by a legislative committee, that your petitioners, by law, were not entitled to anything for said services,” &c. It is averred that these amounts were disallowed by “the legislature,” that being the body whose action is authoritative, as claimed by the counsel for the plaintiffs. The verdict answers specifically that the various sums which are sought to be recovered in this suit, were “ disallowed by the legislature.” When the complaint, therefore, avers that the legislature disallowed these sums ; when the *397answer avers tbat tbej were disallowed, and tbat certain sums were appropriated in full, wbicb tbe plaintiffs and when tbe verdict finds tbat they were disallowed by tbe legislature, does it not seem idle to ask for a trial of an issue whether there was a controversy between tbe state and tbe plaintiffs as to tbe amount they were entitled to have? The simple allegation tbat tbe legislature disallowed a claim, shows tbat they controverted tbat claim. . For it cannot for a moment be assumed tbat tbe legislature disallows anything wbicb it admits to be due. Upon, this point we are fully supported by tbe printed argument of one of tbe plaintiffs’counsel, used at tbe former bearing. He says: “It would be a gross and unpardonable impeachment of tbe integrity of tbe legislature, to say tbat they would not allow what they thought was due. Tbe law under wbicb this action is brought, pre-supposes tbat tbe legislature will act in good faith, in determining whether to make an appropriation or not; and tbat if they refuse to do so, it will be because they think it is not justly due,” &c. And again : “Tbe plaintiffs presented to tbe legislature an account including various items. Tbe legislature allows what it thinks are right, and disallows tbe rest. If tbe legislature is correct in its allowance, then of course what they allow is in full, or is, in other words, tbe full amount justly due the plaintiff. Tbe fact tbat tbe legislature say so in tbe act of appropriation is no better evidence tbat tbe legislature thought so, than their simply disallowing tbe items, *since it would be presumed from the disallowance*alone, *that in the opinion of the legislature they were not due.”*This is exactly our view of tbe law; and therefore when tbe plaintiffs aver tbat tbe legislature disallowed certain portions of their accounts, such allegation alone presents a case of a controverted claim fully within tbe principle upon wbicb our former decision rested.

To say tbat a claim is controverted, means only tbat it is disputed. And tbe inquiry becomes material only in reference to a class of cases wbicb bold tbat where tbe debtor, admitting the full amount claimed by tbe creditor to be due, offers to pay a part in consideration of tbe creditor’s relinquishing all claim for tbe balance, such an agreement is void *398for want of a consideration, and the creditor, though, receiv-the money, may still recover the balance. It is equally weq settled, that where the debtor denies the validity of the claim, this rule does not prevail. And to assume that the legislature did not deny or controvert the validity of such parts of the plaintiffs’ claim as they disallowed, would, $s their counsel well says, “be a gross and unpardonable inj-peachment of their integrity.”

The pleadings present no issue upon this question; but the whole case shows, as was distinctly assumed in the former opinion, that it was a controverted claim, and fully within the principle which was there held to govern it.

The motion is denied, with costs.