Opinion
April 6, 1960 —
May 3, 1960.
APPEAL from an order and a judgment of the circuit court for Taylor county: LEWIS J. CHARLES, Circuit Judge. Affirmed in part; dismissed in part.
For the appellant there was a brief by Clifford F. Curran and Charles G. Giles, both of Medford, and oral argument by Mr. Giles.
For the respondent there was a brief by Nikolay, Jensen Scott of Medford, and oral argument by Raymond H. Scott.
The plaintiff in this action is one H. T. Smith and the defendants are the town of Pershing, Taylor county, and the three members of the town board of such town.
The complaint sets forth two causes of action. The material allegations of the first cause of action are as follows: On May 26, 1956, the defendant town entered into a contract with one Norbert Brost for the delivery by the latter of 12,000 yards of crushed gravel at a price of $1.09 per yard, such gravel to be used in repairing and improving the town roads of such town. This gravel was to be delivered and dumped at such locations as the town board should direct. Brost then entered into a verbal agreement with the plaintiff whereby the plaintiff, by means of his crushing machine, was to crush gravel for such project at a price of 50 cents per yard, and was to receive an additional 40 cents per yard for such of it as the plaintiff hauled in the plaintiff's trucks to places where it was to be used by the town. Pursuant to this subcontract the plaintiff did crush, during the months of August and September, 1956, 6,455 yards of gravel for such town project and all of the same was so used on such project. In addition, the plaintiff with his trucks hauled 790 yards of such gravel to the places where the town used it. The plaintiff became entitled to be paid for such crushing and hauling the sum of $3,543.50. The defendant town failed and neglected to require Brost to furnish bond as required by sec. 289.16(1), Stats., and by reason thereof the defendant town became directly liable to pay plaintiff such $3,543.50, for which judgment is demanded against the town.
The second cause of action is not material to this appeal. Such cause of action seeks judgment for the $3,543.50 against the three town-board members individually on the ground that they paid Brost the balance of the money due for the 12,000 yards of gravel furnished by him after the plaintiff had given written notice of a claim for lien pursuant to sec. 289.53, Stats.
The defendants served and filed an answer to the complaint, which answer denied portions of the plaintiff's complaint and alleged a failure on the part of the plaintiff to comply with sec. 60.36, Stats. Thereafter, the plaintiff moved for summary judgment against the defendant town on his first cause of action, and the defendant town moved for summary judgment dismissing the complaint as to it.
The trial court entered an order denying the plaintiff's motion for summary judgment and granting that of the defendant town. Judgment was entered November 19, 1959, dismissing the plaintiff's complaint as to the defendant town. The plaintiff has appealed from the order denying his motion for summary judgment and also from the judgment.
The plaintiff's cause of action against the town is grounded upon the holding of this court in Cowin Co. v. Merrill (1930), 202 Wis. 614, 233 N.W. 561. It was therein held that a municipal corporation could be held directly liable by a materialman, who had supplied materials to a principal contractor with whom the municipality had entered into a public contract, if the municipality failed to obtain a bond from the principal contractor to protect subcontractors as required by sec. 289.16(1), Stats. It is conceded that no bond was required by the town from the principal contractor, Brost, and that Brost has not paid the plaintiff for the gravel crushed and hauled by the plaintiff. In fact, Brost has been adjudicated a bankrupt.
The issue before us on this appeal is whether the plaintiff's cause of action against the town is barred because of the failure of the plaintiff to comply with sec. 60.36, Stats., before commencing his action. Such statute provides in part as follows:
"No action upon any claim or cause of action for which a money judgment only is demandable, except upon town orders, bonds, coupons, or written promises to pay any sum of money, shall be maintained against any town unless a statement or bill of such claim shall have been filed with the town clerk to be laid before the town board of audit, nor until five days after the adjournment of the next regular meeting of the board of audit thereafter."
The purpose to be served by such a notice-of-claim statute is stated in 17 McQuillin, Mun. Corp. (3d ed.), p. 63, sec. 48.02, to be:
"The principal purpose of the requirement that claims be presented or filed is to provide the city with full information of the rights asserted against it, enable it to make proper investigation concerning the merits of the claim, and to settle those of merit without the expense of litigation."
While the author is only speaking of notice-of-claim statutes pertaining to cities, the quoted statement is equally applicable to those applying to other municipalities such as towns. See also Wentworth v. Town of Summit (1884), 60 Wis. 281, 283, 19 N.W. 97, and Firemen's Ins. Co. v. Washburn County (1957), 2 Wis.2d 214, 227, 228, 85 N.W.2d 840.
Such being the purpose of sec. 60.36, Stats., we can perceive of no reason why the statute should not be applicable with respect to the plaintiff's instant cause of action against the town. There is nothing in sec. 289.16(1) which in any way conflicts with sec. 60.36. We deem that the circuit court properly determined that the plaintiff's failure to file a statement of his claim with the town clerk bars his action against the town.
The plaintiff has cited Town of Ettrick v. Town of Bangor (1893), 84 Wis. 256, 54 N.W. 401. In that case the plaintiff town sought to recover from the defendant town for public assistance rendered to poor persons. Because the statute regulating such poor assistance prescribed the entire procedure for enforcing a claim by one municipality against another, the court held it was unnecessary to file a statement of claim under sec. 824, R. S., predecessor to sec. 60.36. In the instant situation no such procedure for enforcing the plaintiff's claim against the defendant town is set forth in sec. 289.16(1).
In Firemen's Ins. Co. v. Washburn County, supra, it was held that provisions of sec. 81.15, Stats., which section imposes liability upon municipalities for damages incurred as a result of a street defect and provides for service of a notice of injury upon the municipality, do not relieve the damaged party from complying with the notice-of-claim statutes, such as sec. 60.36.
Although entirely outside of the record, the plaintiff's brief states that since the commencement of the action he has filed a statement of his claim with the town clerk. Because of this he requests us to pass upon the issue of whether the measure of his recovery against the town under sec. 289.16(1), Stats., is the price for crushing and hauling agreed upon between Brost and himself, or whether it is limited to reasonable rent for his crusher and trucks exclusive of the cost of any labor to operate the same. However, for us to pass on such issue would be to render an advisory opinion. This is because it is not relevant to the instant action, but would only be of value in another action which plaintiff contemplates commencing if we affirm the judgment below. This court declines to render advisory opinions.
The entry of judgment dismissing the plaintiff's complaint and our affirmance of such judgment have rendered moot the issue of whether it was error to deny plaintiff's motion for summary judgment. Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 88 N.W.2d 672. Therefore, the appeal from such order will be dismissed.
By the Court. — Judgment affirmed; appeal from order dismissed.