Paul v. City of Kenosha

22 Wis. 266

• Court: Wisconsin Supreme Court
• Decided: September 15, 1867
• Status: Published

Opinion

Cole, J.

Hnder the circumstances, we consider the objection that the plaintiff could not recover the consideration paid for the city bonds, without offering to return them to the city, as untenable. The suit was against the city which issued the bonds; and the bonds were put in evidence, and declared void and of no value whatever by the circuit court. What further purpose or use can the bonds be put to ? They are canceled. We are really at a loss to imagine what earthly benefit the possession of the bonds would be to the city. Perhaps, if the city had asked that the bonds be delivered over to its possession after the court had held them to be null and void, the court might have so ordered; although it would seem to be an idle act.' But no request of the kind was made, and we cannot see how the city can possibly be prejudiced by the bonds remaining with the record and papers in the cause. The court held that the plaintiff was entitled to a judgment for the amount paid for the bonds — less the $175 paid in coupons, and the $100, paid in city scrip, which was allowed the plaintiff for signing the bonds. In other words, the plaintiff was permitted to recover the amount of money and scrip which had been issued for municipal purposes, and which had been paid the city by him for bonds which were of no value. What valid objection can there be to a judgment against the city to that extent ? The city has had that amount of money and legal scrip for its city bonds, which turn out to .be of no value whatever. It seems to fall under the general | rule of law, that where a party sells an obligation which ! turns out to be valueless and not of such a character as he j represents it to be, he is liable to the vendee as upon a fail- | ure of consideration. The city bonds, it appears, were void ■when the agents of the city sold them to the plaintiff. Is it just and equitable that the city retain the money which it has received for its own worthless bonds ? The plaintiff took the bonds upon the presumption that they were valid securities, and paid his money, or its equivalent, to the city for them. They turn out to be void for want of power on the part of the city to issue them; and he seeks to recover back the money paid as upon a failure of consideration. Can he not recover the amount he has. paid the maker of the bonds for its worthless paper ? It séems to us unnecessary to go into the authorities upon the question. The principle has been fully discussed in Hurd v. Hall, 12 Wis., 112; Lawton v. Howe, 14 id., 241; Costigan v. Hawkins [ante, p. 74.] Upon the ground, therefore, that the amount recovered was paid upon a consideration which has failed, we think the judgment right.

By -the Court. — The judgment of the circuit court is affirmed.