Schultz v. City of Milwaukee.

D. H. Johnson, city attorney, for appellant, argued: 1. That a municipal corporation is not liable for any failure, mistake, or even wrong, committed by its legislative department. Dill. on Mun. Corp., § 39. 2. That such a corporation is not liable for any failure on the part of its police department. Id., § 773. 3. That coasting or bobbing in a highway is not an obstruction or defect in the highway for which a city or town is liable under the statute. Ray v. Manchester, 46 N. H. 59; Hutchinson v. Concord, 41 Vt. 271. Austin & Runkel, for respondent.

LYON, J. 1. The injury of which the plaintiff complains was not caused by the insufficiency or want of repairs of the street in which he was injured, and hence the action will not lie under section 1339, R. S., p. 415. If authorities are required to so plain a proposition, they may be found in the brief of the city attorney.

2. The complaint contains allegations sufficient to show a gross neglect of duty on the part of the city officials. The coasting or sliding down Poplar street in the manner and to the extent charged in the complaint was, while being indulged in, a grievous public nuisance, which the city authorities ought to have prevented or suppressed. But this duty is a public or police, rather than a corporate, duty, in the performance of which the corporation, as such, "has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community." It was held in Hayes v. Oshkosh, 33 Wis. 314; s. c., 14 Am. Rep. 760, that a municipal corporation is not liable for injuries caused by the failure of its officers and agents to perform such duties. In the opinion in that case, from which the above extract is taken, Chief Justice DIXON says that the question there presented "is settled by authority as fully and conclusively as any of a judicial nature can ever be said to have been." See, also, Wallace v. Menasha, 48 Wis. 79.

3. The learned counsel for the plaintiff say in their brief, that "the complaint in this action is not founded upon the theory that the common council of the defendant city neglected to exercise the restraining power given by the charter, or enforce its police regula tions, but solely upon the principle expressed in Little, Adm'r, v. City of Madison, 42 Wis. 643;" s. c., 24 Am. Rep. 435.*

See s. C., post. REP.

Schultz v. City of Milwaukee.

In Little v. Madison, we construed the complaint as alleging that the city of Madison expressly granted a license to one Carr to give a bear show in State street, which was alleged to be, and in fact is, one of the principal streets of the city. It was charged that the injury complained of was caused by such bear show, exhibited there pursuant to such license. On demurrer it was held that the complaint stated a cause of action against the city. Although reference is made in the opinion by Mr. Justice COLE, to the fact that it was alleged in the complaint that the agents of the city knowingly and carelessly allowed one of its principal streets to become obstructed by the exhibition, yet the precise ground of the judgment in that case is, that if a municipal corporation, in the attempted exercise of any power conferred upon it by law, as to license shows, amusements and the like, exceeds its authority, and licenses the placing of a public nuisance in a street, or the unlawful and dangerous use of a street for any purpose, and an injury results therefrom, without negligence on the part of the person injured, the municipality is liable to respond in damages for such injury. The case goes no further, and could not without violating well settled principles of law.

[Omitting a question of pleading.]

It results from the foregoing views that the demurrer to the complaint should have been sustained.

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

Order reversed, and cause remanded.

NOTE BY THE REPORTER.-To same effect, Calwell v. City of Boone, 51 Iowa, 647; s. c.. 33 Am. Rep. 154. In Steele v. City of Boston,128 Mass. 583, it was held that a city is not liable either at common law or by statute, for an injury received by a person crossing the public common from a sled used in coasting down a path on such common, although the city authorities licensed such coasting and prepared the path therefor. The court said:

"There was no evidence offered that the foot paths on the common have ever been laid out as highways or townways. The city holds the common for the public benefit, and not for its emolument or as a source of revenue, and has constructed and kept in repair these paths, as a part of the common, for the comfort and recreation of the public, and not as a part of its system of highways or streets. It is not liable under the statute for any defect or want of repair in them. Oliver v. Worcester, 102 Mass. 489; s. c., 8 Am. Rep. 485; Clark v. Waltham, recently decided.

"The plaintiff contends that if there is no statute liability, the city is liable as owner of the land, and the maker and repairer of the way upon which the plaintiff was invited to go. If a private person owned a similar park to which he had given the public free access we are at a loss to see how he could be held liable for an accident like that of the plaintiff. Such person might, if he saw fit, set apart and fit for use one of the paths for the

recreation of youth in coasting, and if any one should, as was the case with the plaintiff, choose to enter upon the path seeing that it was set apart for this purpose, he would do so at his own risk, and could not hold the owner responsible if he was injured by a pass. ing sled. But even if a private owner would be liable, it does not follow that the city would be. It maintains the common solely for the benefit of the public. If there is any legal duty to keep the paths in a safe condition, it is solely a public duty, for a breach of which no action lies by an individual who is injured, unless the statutes give such action. Clark v. Waltham, supra, and cases cited. The city may legally set apart a portion of the common for the recreation of the young. The fact in this case that it did so, and that it used means to fit it for the purpose for which it was set apart, did not render it liable to the plaintiff for the injury which he sustained." The precise doctrine of the principal case was held by the same court in Pierce v. New Bedford, Oct. 1880.

In Borough of Norristown v. Fitzpatrick, 8 W. N. C. 459, A. was injured while crossing a street in a borough, by the firing of a cannon by a crowd of men. The jury found in a special verdict that the firing had been going on for some hours, without any special authorization from the borough authorities, and that a policeman standing by at the time did not interfere to stop it. The borough was specially directed by act of assembly to appoint policemen to preserve the public peace, remove nuisances, etc. In an action by A. to recover damages for said injuries, held, that the borough was not liable. The court said: "The difference between those cases in which cities, boroughs and townships have been held responsible for neglect, and the one in hand, is very wide; the maintenance and repair of highways, sewers, wharves, etc., belong to their immediate jurisdiction, and over them they alone have control, hence their responsibility. But the conservation of the peace is a great public duty, put by the Commonwealth into the hands of public officersthe judges, justices of the peace, and mayors, the governors, sheriffs, constables, and policemen; hence cities and boroughs can no more be charged with damages, resulting from their misconduct, than can counties, townships, or the State at large." The same is held as to misfeasance of public officers, in Pollock's Admrs. v. Louisville, 13 Bush, 221; 8. c., 26 Am. Rep. 260, and cases referred to in latter report; also in Grumbine v. Mayor, 2 McArthur, 578; s, c., 29 Am. Rep. 626. Very similar to the principal case in the circumstances and holding was Boyland v. Mayor, 1 Sandf. 27.

In Harmon v. City of Lynchburg, 33 Gratt. 37, it was held that the city was not liable for the destruction of whiskey by the police, although done in apprehension of danger from the presence of a large number of fugitive soldiers and other riotous persons, and of the immediate occupation of the city by a hostile soldiery, and as a means of safety to the persons and property of the citizens. The court said: “As well might it be contended that the city would be liable for a wanton assault and battery committed by its police."

PARRY V. SPIKES.

(49 Wis. 384.)

Statute of frauds — guaranty —consideration.

An agreement indorsed on a note before negotiation to "guaranty the pay. ment of the within note," and constituting a ground of credit to the maker, is void within the statute of frauds if it does not express the consideration.

A

CTION on a guaranty of a promissory note. Before delivery of the note to the payee, and to give it additional credit, and in consideration of the sale and delivery of goods by the payee to

Parry v. Spikes.

the maker, defendants indorsed and signed said note on the back as follows: "We the undersigned jointly guaranty the payment of the within note." The defendants had judgment below on demurrer.

G. J. Cox, for appellant. The original consideration to the maker embraces the guarantors as well as the principal, where the guaranty is contemporary with the principal contract. 2 Dan. on Neg.

Inst., § 1759; Houghton v. Ely, 26 Wis. 181; s. c., 7 Am. Rep. 52; Gorman v. Ketchum, 33 Wis. 427; Ives v. Bosley, 35 Md. 262; s. c., 6 Am. Rep. 411; Burton v. Hansford, 10 W. Va. 470; s. c., 27 Am. Rep. 571; Barlow v. Myers, 64 N. Y.41; s. c., 21 Am. Rep. 582; 582; Leonard v. Vredenburgh, 8 Johns. 29; 5 Am. Dec. 317. Where the indorsement or guaranty is made for the purpose of procuring credit for the note, the indorsers or guarantors are liable. Cromwell v. Hewitt, 40 N. Y. 491; White's Bank v. Myles, 73 id. 335; s. c., 29 Am. Rep. 157; Burton v. Hansford, supra; Moore v. Cross, 19 N. Y. 227; Richards v. Waring, 1 Keyes, 576; Chaddock v. Van Ness, 35 N. J. 517; s. c., 10 Am. Rep. 256; Eilbert v. Finkbeiner, 68 Penn. St. 243; s. c., 8 Am. Rep. 176; Rothschild v. Grix, 31 Mich. 150; s. c., 18 Am. Rep. 171; Jones v. Goodwin, 39 Cal. 493; s. c., 2 Am. Rep. 473, and note by reporter. The note and guaranty are to be read together, and the words "value received," on the face of the note, express the consideration for both. Houghton v. Ely, supra; Sears v. Loy, 19 Wis. 96; Washburn v. Fletcher, 42 id. 152: Dahlman v. Hammel, 45 id. 466; Leonard v. Vredenburgh, supra. Although the consideration for a promise may pass to a third person, and not to the promisor, still, if the promise is made at the time the credit is given, and it is given on the strength of such promise, it is held to be an original undertaking, and not within the statute of frauds. Hall v. Wood, 4 Chand. 36; 3 Pin. 308; Thayer v. Gallup, 13 Wis. 539; Snyder v. Wright, id. 691; Dyer v. Gibson, 16 id. 557; Shook v. Vanmater, 22 id. 532; Putney v. Farnham, 27 id. 187; Vogel v. Melms, 31 d. 306; Young v. French, 35 id. 111; Hull v. Brown, id. 652; Cady v. Shephard, 12 id. 639; Davis v. Barron, 13 id. 227; King v. Ritchie, 18 id. 554; Jones v. Goodwin, 39 Cal. 493; s. c., 2 Am. Rep. 473; Ricard v. Sanderson, 41 N. Y. 179; Barker v. Bradley, 42 id. 316; Coster v. Mayor, 43 id. 399; Barlow v. Myers, 64 id. 41; s. c., 21 Am. Rep. 582; Vrooman v. Turner, 69 N. Y. 280; s. c., 25 Am. Rep. 195; Miller v. Winchell 70 N. Y. 437; Pomeroy on Spec. Perf. 548.

Parry v. Spikes.

Charles W. Felker, for respondents.

COLE, J. The ruling of the county court sustaining the demurrer to the complaint is clearly supported by the decision in Taylor v. Pratt, 3 Wis. 674, decided by this court a quarter of a century ago. The facts stated in the complaint are substantially the same as those presented on the record in that case; consequently the order cannot be reversed without overruling Taylor v. Pratt.

We are decidedly opposed to unsettling a rule of law of such practical importance in the business transactions of every day, which was established so long ago upon the fullest argument, after great deliberation, whatever might be our views upon the point as a new question. "Stability and certainty in the law are always of the first importance. They are more especially so in cases arising under the statute of frauds than any other. There is no statute the provisions of which enter more frequently into the transactions of trade and commerce. It is a matter of daily and hourly interest that they should be remembered and attended to." DIXON, C. J., in Houghton v. Ely, 26 Wis. 181-195. These observations of the chief justice have great weight in cases of this character. The learned counsel for the plaintiff insists that the doctrine of Taylor v. Pratt has been greatly weakened, if not directly overthrown, in subsequent cases decided by this court. But this is a mistake. It is true, DIXON, C. J., in Houghton v. Ely, makes a vigorous attack upon the doctrine of Taylor v. Pratt, and attempts to show that it is unsound in principle and opposed to the great weight of authority. But the majority of the court did not concur in the chief justice's strong disapproval of the doctrine of Taylor v. Pratt. For while I agreed with the chief justice in holding the defendants, in Houghton v. Ely, as not within the protection of the statute of frauds, and liable as joint makers- they having written their names on the back of a non-negotiable promissory note, at the time it was made and delivered to the payee, for the purpose of giving the instrument additional credit, I stated that I should adhere to the decision in Taylor v. Pratt in a case presenting the same facts.

Mr. Justice PAINE combated the views of the chief justice in an opinion marked by his usual clearness of reasoning and logical precision, saying that while the decision in Taylor v. Pratt stood opposed to an indefinite number of authorities, there was still no