I. This action was commenced in August, 1870, at which time the following statute was in force: “ When any action in a justice’s court shall be commenced by or against any town, or town officer in his official capacity, the same shall be commenced before a justice of the peace elected in any adjoining town.” R. S., ch. 120, sec. 19. By reference to certain acts of the legislature of which the court takes judicial notice (the same being public acts), it probably appears that the city of Beaver Dam, in which the justice, before whom this action was commenced, was elected, does not adjoin the town of Westford, the defendant. P. &'L. laws of 1857, ch. 158 ; P. & L. Laws of 1870, ch. 114. If it does not, the justice had no jurisdiction of the defendant, and the motion to dismiss, made before him, should have been granted for that reason. There can be no doubt, however, that this defect of jurisdiction relates to the party, and not to the subject matter of the action, and, within repeated decisions of this court, is waived and cured by answering to the merits, and by various other acts. Blackwood v. Jones, 27 Wis., 498; Damp v. The Town of Dane, 29 id., 419. Hence, when the defendant interposed its answer to the merits of the action, the justice, by that alone, acquired jurisdiction of such defendant, and the objection that the justice had no jurisdiction, subsequently made in the progress of the cause, was properly overruled.
II. The objection that the complaint fails to state facts sufficient to constitute a cause of action against the defendant, seems to be based upon the hypothesis that the town, as such, is not the custodian and trustee of the drainage fund, and has no control over its disbursement. It is claimed that if the plaintiff has a cause of aotion, it is against the supervisors and not against the town, for the alleged reason that the supervisors are the trustees of the drainage fund, and do not act as the agents of the town in any matter concerning such fund or the disbursement thereof.
The argument of the learned counsel for the defendant in *329support of his hypothesis is very ingenious, but we are not prepared to adopt his views. The town drainage fund was created by cb. 151, Laws of 1869. That act provides that certain drainage moneys shall be apportioned to the several towns (sec. 11), and refers to the moneys so apportioned to any town as belonging to the town (sec. 14); it provides that the money shall go into the hands of the town treasurer (sec. 14), and, when paid into the town treasury, it shall be denominated the drainage fund of the town, and, if not needed for drainage purposes, it may be applied to the support of schools (sec. 17). True, the law places the fund 'under the control of the town board of supervisors, and provides that the same shall be expended under their direction, for the purposes specified in the act; but these provisions merely designate the agencies through which the town shall act in disposing of the fund, and do not relieve it from its obligations as custodian and trustee thereof. One of those obligations is, to perform all lawful contracts made by the supervisors in respect to the fund. The contract stated in the complaint is one that the supervisors had lawful authority to make; and hence the complaint states a cause of action against the town.
III. The circuit judge refused to give an instruction to the jury, prayed for by the defendant, as follows: “ If the jury find from the evidence in the case that there was not -the sum of sixty dollars of the drainage fund in the custody of the town of Westford, at the time at which the plaintiff claims he entered into the agreement set forth in the complaint, then the alleged agreement, if made, was made without authority, and the plaintiff cannot recover.”
In contemplation of law, there was, at the time mentioned, more than sixty dollars of the drainage fund in the town treasury. The fact that the supervisors had used it, without legal authority, for another purpose, cannot relieve the town from liability. The plaintiff had the right to assume that there was money belonging to that fund in the treasury, and *330to contract on the faith of it. And if he did so, and has performed his contract, the wrongful act of the agents of the town in •using the fund for an unauthorized purpose cannot destroy his contract and exonerate the town from liability on account thereof. So far as he is concerned, there was a sufficient drainage fund belonging to the town to pay him for his work, and the town, as the trustee of that fund, is bound to apply the same to that purpose.
We are of the opinion that the proposed instruction was properly refused.
IY. The charge of the court to the jury is based upon the proposition that the complaint states a cause of action against the defendant, and the disputed question of fact as to whether the supervisors employed the plaintiff to dig the drain, as alleged in the complaint, was very clearly and fairly submitted to the jury, and it was determined by them in the affirmative. Without setting out the charge in full, it is sufficient to say, that it has been carefully examined, and we find nothing in it which will warrant us in disturbing the verdict.
Y. Two rulings of the court on objections to the admission of testimony are claimed to be erroneous.
1. The plaintiff, when testifying in his own behalf, was permitted, against an objection by the defendant, to answer the following question : “ How much did the supervisors agree to pay you for digging their ditches? ” He answered, “ Sixty dollars.” Having held that the supervisors were the agents, of the defendant in this behalf, and that the complaint states a cause of action against the town, it necessarily follows that the question was a proper one, and the ruling correct.
2. One Peter Laffan was called as a witness by the plaintiff, and testified that he was present when the contract for ditching was made between the supervisors and the plaintiff, and he stated the terms of that contract substantially as the plaintiff claims them to be. This was the extent of his direct testimony. On his cross examination he was asked the following question: *331“ In the month of June afterwards was there not a meeting of the supervisors, and didn’t you bid on the letting of this same job, and call to the men that were working on this new ditch on HohVs land, and suggest to them that they should bid on the same job ? ” An objection thereto by the plaintiff was sustained by the court. Certainly this question is not proper cross examination, unless the answer to it might tend to impeach the testimony which the witness had given on his direct examination; for it related to a transaction concerning which the witness had not been examined in chief, and had not testified. And it is not perceived how the answer to the question could tend to impeach the former testimony of such witness. Suppose he had answered the question in the affirmative? His answer might show that the supervisors had been guilty of bad faith towards the plaintiff, but it would fail to show — it would not even tend to show — that the direct testimony of the witness was false.
It appears from the other testimony that the supervisors did afterwards let this work to a third person ; but in our view of the case the testimony is immaterial. So, whether we regard the question merely as cross examination, or as a question upon the merits of the case, it seems to be equally immaterial.
Finding no error in the rulings of the circuit court, and finding sufficient testimony to support the verdict, it necessarily follows that the judgment must be affirmed.
By the Court.— Judgment affirmed.