Opinion
October 6, 1953 —
November 3, 1953.
APPEAL from an order of the circuit court for Douglas county: CARL H. DALEY, Circuit Judge. Affirmed.
For the appellant there were briefs by McPherson McPherson and Hughes, Anderson Davis, all of Superior, and oral argument by L. R. McPherson and John L. Davis.
For the respondents there was a brief by Crawford, Crawford Cirilli of Superior, and oral argument by R. A. Crawford.
This is an appeal from an order entered February 26, 1953, sustaining a demurrer to the complaint.
Defendants demurred upon the following grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the plaintiff has not legal capacity to sue; (3) that the action is barred by the statute of limitations; (4) that the plaintiff is estopped because of laches.
The complaint alleges that in 1919 the Superior, Wisconsin, chapter of the American National Red Cross had funds on hand in the sum of $39,918.72 designated "Material Fund" which had been accumulated by public donations. On November 26, 1919, the following resolution was adopted by the chapter:
"Resolved, that the Material Fund of this chapter which was given to be used in Douglas county, be hereafter designated as `The Douglas County Disaster and Welfare Fund,' and be placed in the hands of T. B. Mills, P. G. Stratton, W. J. Leader, Pearl Benson, and Louis Hanitch, as a committee, to be administered by them as trustees in the following manner: The principal to be used to care for such people, while they are in Douglas county, as may become destitute or in distress on account of any disaster happening in the general locality of the head of Lake Superior, such for example as the Minnesota fires, which occurred in the year 1918; and until so used, that this money be invested by the committee or trustees in interest-bearing securities, to be selected in their discretion, and that the income therefrom be used in Douglas county for public welfare work; that they make a report annually and file a copy with the clerk of circuit court for Douglas county; that in case of death, resignation, disability, or removal from Douglas county of any trustee, the other trustees may appoint a successor to act until one is elected."
Pursuant to the resolution the fund was turned over to the Douglas County Disaster and Welfare Fund which will hereinafter be referred to as the "committee."
In November, 1918, there had been turned over to the chapter $23,429.86 by a committee which had been organized to afford relief to persons who had suffered as a result of disastrous fires in the community. This money was in turn turned over by the chapter to the defendant committee. It is not alleged that there was any improper handling of these funds by the committee; on the contrary, it is stated that it "invested, disbursed, and administered said funds in a wise, prudent, and businesslike manner," and that annual accounts had been filed by the committee with the clerk of the circuit court as in the resolution provided.
At its annual meeting held on July 12, 1950, the chapter adopted a resolution purporting to rescind or revoke the resolution of November 26, 1919, and directing its chairman to make written demand for the return of the funds. The demand was made and return was refused.
The action was brought for judgment declaring that the funds in the hands of the committee is the property of the chapter, that the resolution of November 26, 1919, was adopted in violation of the rules and by-laws of the chapter, and that the committee be required to account for and return to the chapter the funds now on hand.
The trial court sustained the demurrer principally upon the ground that the statute of limitations had run against the claim of the plaintiff.
The chapter contends that its transaction with the committee constitutes a bailment, and that the statute of limitations did not begin to run against its cause of action for the recovery of the fund and property turned over until demand for such return was made on July 14, 1950. The difficulty with that contention is that the transaction does not constitute a bailment. There is no allegation that it was intended by the parties that ownership of the fund was to remain in the chapter. 6 Am. Jur., Bailments, p. 216, sec. 57. Nothing is alleged out of which we are able to read the right reserved to the chapter to demand return of the fund.
"The law is that in order to constitute a bailment there must be an agreement, express or implied, to redeliver the property bailed when the purpose of the bailment has been fulfilled." Bradley v. Harper, 173 Wis. 103, 108, 180 N.W. 130. See also Ketler v. Klingbeil, 219 Wis. 213, 262 N.W. 612. There is no bailment.
It is not necessary to determine whether a trust was or was not created. In either case the plaintiff cannot prevail. If a trust relation was established, the resolution creating it contains no provision reserving to the plaintiff the power of revocation. The settlor of a trust cannot, except under circumstances not here existing, revoke it unless he has reserved such power. Restatement, 2 Trusts, pp. 984, 1138, secs. 330, 367; Daughters of American Revolution v. Washburn College, 160 Kan. 583, 164 P.2d 128; Strong v. Doty, 32 Wis. 381.
If, on the other hand, the plaintiff was without authority to transfer its property in trust, as it now contends, its remedy is in an action for money had and received. Northwestern Union Packet Co. v. Shaw, 37 Wis. 655; Clarke v. Lincoln Lumber Co. 59 Wis. 655, 18 N.W. 492. The statute of limitations, sec. 330.19 (3), Stats., which provides a six-year period of limitations in the case of implied contracts, applies. Ketler v. Klingbeil, supra; Milwaukee v. Drew, 220 Wis. 511, 265 N.W. 683; 54 C.J.S., Limitation of Actions, p. 101, sec. 159. Approximately thirty years had elapsed since the transfer of the fund and prior to the demand for its return and the commencement of this action.
The trial court was correct in its conclusion that any claim which the plaintiff might have was barred by operation of the statute of limitations.
By the Court. — Order affirmed.