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JUDGMENT

MEYER V. BARTH

[97 WISCONSIN, 35.] AGAINST

PRINCIPAL-EFFECT OF AS AGAINST SURETIES.-Sureties upon a probate bond are, in the absence of fraud or collusion, concluded by the decree of a proper court rendered upon an accounting of their principal.

PRACTICE.-THE OBJECTION THAT THE PLAINTIFF HAS NOT LEGAL CAPACITY to sue, if not taken by answer or demurrer, is waived.

Action commenced against the sureties upon a bond of a trus tee of a testamentary trust. The trustee was removed at the instance of his sureties, and thereafter filed an account of his trusteeship, which was settled by a decree of the proper court, but it was insisted that such decree was not conclusive upon the sureties. Judgment for the plaintiff; defendants appealed.

Timlin & Glicksman and Julius F. Roehr, for the appellants. O. T. Williams & Coleman, and Rogers & Mann, for the respondent.

355 WINSLOW, J. Whatever may be the rule in other jurisdictions, this court has definitely adopted the rule that sureties upon a probate bond are, in the absence of fraud or collusion, concluded by the decree of the proper court, rendered upon an accounting by their principal, as to the amount of the principal's liability; and this is the rule even though the sureties be not parties to the accounting; Shepard v. Pebbles, 38 Wis. 373; Holden v. Curry, 85 Wis. 504; Schoenleber v. Burkhart, 94 Wis. 575. The same rule prevails in many courts: Heard v. Lodge, 20 Pick. 53; 32 Am. Dec. 197; Stovall v. Banks, 10 Wall. 583; Irwin v. Backus, 25 Cal. 214; 85 Am. Dec. 125; Smith v. Smithson, 48 Ark. 261; Martin v. Tally, 72 Ala. 23; Housh v. People, 66 Ill. 178. It is not alleged in the present case that there was any fraud or collusion in Koetting's accounting before the county court. Therefore, when, upon that accounting, the county court adjudged that on the third. day of March, 1896, there was due from Koetting to the estate of Lurinda Shepardson fifty-nine thousand five hundred and fifty-seven dollars and eighty-one cents, the question as to the amount of Koetting's liability as trustee was conclusively settled, both as to Koetting and as to the sureties upon his bond. We do not need therefore, to examine or discuss & number of questions which are discussed by counsel relating to the amount of Koetting's default. Those questions were

closed by the 56 decree rendered upon the accounting, and cannot be opened in this action. This was the conclusion reached by the superior court, and it thereupon rendered judgment for the plaintiff for the amount of the deficiency found by the county court, with interest from the date of that judg ment, and this was manifestly right.

A point was made that the action should have been prosecuted by the county judge, under the Revised Statues, section 4014, subdivision 4, and section 4015. We do not regard the point as of merit. The funds must, when recovered, go into the hands of Meyer, to hold as trustee; and he is, in his representative capacity, the real party in interest. Conceding the point to have been technically well taken, no objection was made by answer or demurrer, the point being raised by objection on the trial for the first time. It is, in effect, an objection that the trustee has not legal capacity to sue; and this must be taken by demurrer or answer, or it is waived. It is, in principle, much like the case of Webber v. Ward, 94 Wis. 605.

By the Court. Judgment affirmed.

JUDGMENT-CONCLUSIVENESS - PRINCIPAL AND SURETY.-Judgments and decrees bind parties and privies only, and privity exists only where there is identity of interest: Winston v. Westfeldt, 22 Ala. 760; 58 Am. Dec. 278. The sureties of an administrator are in privity with him: State v. Coste, 36 Mo. 437; 88 Am. Dec. 148, and note. A judgment against a guardian was held conclusive upon his sureties in Douglass v. Ferris, 138 N. Y. 192; 34 Am. St. Rep. 435, and note. But a judgment against a person indemnified is conclusive in a suit against his indemnitor only as to the facts thereby established: St. Joseph v. Union Ry. Co., 116 Mo. 636; 38 Am. St. Rep. 626, and note. See monographic note to Charles v. Hoskins, 83 Am. Dec. 380-390.

PLEADING-DEFECT OF PARTIES-WAIVER OF OBJECTION.-Defect or misjoinder of parties appearing upon the face of the complaint is a ground of demurrer, and when not appearing on the face of the complaint, objection thereto may be taken by answer. If no such objection be taken either by answer or de murrer, it is waived: Great West. Min. Co. v. Woodmas etc. Min. Co., 12 Colo. 46; 13 Am. St. Rep. 204, and note.

PORMANN V. WALSH.

[97 WISCONSIN, 356.]

UNDER A BUILDING CONTRACT providing that work is to be done or materials furnished to the entire satisfaction of the architect and also to the satisfaction of the owner, no recovery can be had if the owner is not satisfied, though the architect is, unless

the dissatisfaction of the owner is shown to be capricious and un

reasonable.

BUILDING CONTRACTS.-If a builder accepts payment of a contract with the understanding that no further payment shall be made unless he has made satisfactory certain plastering objected to, he cannot maintain any action unless he complies with the understanding by making such plastering satisfactory.

A. J. Eimermann, for the appellant.

Sylvester, Scheiber & Orth, for the respondents.

362 PINNEY, J. 1. The evidence clearly sustains the findings of the circuit court. The only question worthy of particular consideration is whether the plaintiff was entitled to recover one hundred and twenty-five dollars, the unpaid portion of the contract price which was to be paid to the plaintiff for performing the contract, and what effect should be given to that part of the contract which provides "that the work done and materials furnished shall be to the entire satisfaction of Fred. Graf, who is hereby declared to be the superintendent of the building, and to the satisfaction of the owner," and the certificate of the architect that the contractor was entitled to specified payments "subject to owner's approval." It is contended on the part of the defendant that by the contract such approval on his part was a condition precedent to recovery for work done under it, as well as the certificate of the architect. We know of no reason why the parties might not lawfully make the contract in this respect as they did in the present case, or why it should not be enforced as made. In Hudson on Building Contracts, second edition, 274, it is said: "Work is sometimes agreed to be done. to the approval of the engineer and the employer, and sometimes to the approval of the engineer only. In the former case, the engineer may disapprove or approve unreasonably, and his approval would be a condition precedent to payment. The only benefit to a building owner of such a condition is, that if the architect approves unreasonably, to the detriment of the building owner, the building owner might still disapprove, but only reasonably; and it would seem unreasonable for him to disapprove (fraud or collusion apart) when his architect has approved, inasmuch as by the selection of the architect he has fixed the standard by which 363 the work is to be tested. The builder could bring an action (in the event of the employer's disapproval), and it would be a question for the jury whether the work was reasonably in accordance with the contract." The evidence disclosed abundant cause for the owner's refusal to withhold his

approval of the work. The plaintiff insists that the certificate of the architect is conclusive, and that it is not a condition precedent to a recovery of the unpaid portion of the contract price that the work had been done "to the satisfaction of the owner." We do not see any ground upon which the court can refuse to give full force and effect to this provision of the contract as the parties have written it. If the contractor fairly obtains the certificate of the architect, the building owner cannot unfairly and capriciously withhold his approval or satisfaction with the work, so as to defeat a recovery for proper performance.

2. With respect to the one hundred and twenty-five dollars claimed by the plaintiff, he substantially entered into a new agreement by signing the indorsement on the last certificate, to the effect that the amount of that certificate (two hundred dollars), which was paid to him, was received "on the express understanding that the defective plastering will be made perfectly satisfactory before any further payment is made." We are unable to see any ground upon which the plaintiff, in view of the circumstances, can recover the one hundred and twenty-five dollars claimed, and it follows that the judgment of the circuit court must be affirmed.

By the Court. The judgment of the circuit court for Milwaukee county is affirmed.

The

CONTRACTS - PERFORMANCE ΤΟ SATISFACTION OF PARTY.-A contract to do work upon property to the entire satisfaction of its owner, and in the best workmanlike manner, is satisfied by doing such work in a good and workmanlike manner. owner cannot avoid payment by arbitrarily and unreasonably saying that he is not satisfied: Doll v. Noble, 116 N. Y. 230; 15 Am. St. Rep. 398. The satisfactoriness of the completed work is to be determined by the mind of a reasonable man, and not by the private taste or liking of the owner: Hawkins v. Graham, 149 Mass. 284; 14 Am. St. Rep. 422, and note.

MADISON V. MAYERS.

[97 WISCONSIN, 399.]

STREETS-ACTUAL LOCATION OF, CONTROLS.-In the absence of original monuments which can be ascertained, the location and occupancy of a street as indicated by old buildings and fences, and by its use for many years, must control as a practical location of the street, and is a practical construction of the plat thereof. The lands included in the street as thus used must be regarded as dedicated to the public use.

STREETS-PARTIAL OCCUPANCY AND USE OF.-The fact that a street was never worked or fitted for travel clear to the south line thereof does not prevent the municipality from working and fitting it for travel up to such line whenever it may choose.

STREETS.-MERE NONUSER of a part of a street cannot operate as a surrender or abandonment of any part of it for the purpose of a public street.

STREETS-MUNICIPAL CORPORATIONS, RIGHT TO IN. A city has a right to maintain a suit to prevent an abutting property owner from removing stone, earth, and other materials from within the limits of a street and from impairing an embankment situated therein, or from making it more difficult or expensive to fit the whole width of the street for travel.

STREETS.-A TOWN PLAT IS NOT CONCLUSIVE that there is a strip of land, as there represented, between a street, and the shore of a lake. The dimensions of the several lots as they ap pear on the plat must yield to the actual condition of things as they exist, and be determined by the practical location and construction of the plat upon the ground.

MUNICIPAL CORPORATIONS-RIGHT TO FORBID THE FILLING IN OF A LAKE.-Though a city has been given power to enact ordinances for the benefit of trade, commerce, and health, and to provide for the abatement and removal of nuisances, it is not thereby authorized to restrain the filling in of a lake not constituting any part of the public street.

RIPARIAN PROPRIETORS-RIGHT TO CONSTRUCT WHARVES AND PIERS.-Owners of land in a city between a street and the shore of a lake have the right to construct in front of their respective lots, in shoal water, proper wharves, piers, and booms in aid of navigation, without obstructing it, far enough to reach water navigable for such boats as are in use or appropriate to the lake.

MUNICIPAL CORPORATIONS-PUBLIC NUISANCES OR PURPRESTURES.-A municipal corporation, within whose limits is a lake, has no more right to remove, or to compel the removal of, a purpresture or public nuisance therein than has a private individual. Its removal can be compelled only by some proceeding instituted by the state.

John A. Aylward, city attorney, and R. M. Bashford, for the appellant.

་ Erdall & Swansen and W. R. Bagley, for the respondent.

407

406 CASSODAY, C. J. The complaint alleges, in effect, that Spaight street, between Patterson and Livingston streets, was regularly laid out, platted, and recorded, and is sixtysix feet wide, and was and is traveled, and runs along the south. side of block 149. The several answers allege that the street was established and dedicated under and by virtue of the Doty plat, duly executed and recorded May 7, 1837; that November 27, 1868, the common council of the city widened the street by extending the northerly boundary thereof, opposite lots 4, 5, 6, 7, and 8 in block 150, into block 149, as therein stated; that December 4, 1868, the common council vacated the portion of

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