81 Wis. 160 | Wis. | 1892
The pleadings, stipulation, documentary evidence, rulings of the court, and offers of testimony on the part of the plaintiff are voluminous, but are sufficiently indicated in the foregoing statement. The claim of the plaintiff is for a balance due for ’ a liability incurred and money advanced at the request of the defendants and for
It is claimed that such rulings were justified by the prin
As indicated, the principal defense here alleged was a full settlement by way of accord and satisfaction. Not being a counterclaim, nor pleaded as a part of a counterclaim, it was to be deemed controverted by the plaintiff as upon a direct denial or avoidance, as the case might require. Sec. 2667, R. S. Upon the issue thus raised, it was competent for the plaintiff to prove that his signature to the release was procured by false representations and fraud. Leslie v. Keepers, 68 Wis. 127-8, and cases there cited. This is, in effect, conceded, but it is claimed that the false representations sought to be proved were confessedly operative only in procuring the accord, but did not extend to the procuring of the release. It will be observed from the foregoing statement that the compromise paper alleged in the answer provided for the payment by the receiver of fifty cents on the dollar; that the payment therein alleged to have been made, and for which the release was given, was for the same per cent, and by the same receiver. Exhibits C and D substantially correspond with the compro
The accord is executory in its nature. It called for payment to be subsequently made by the defendants. It did not in express terms call for a receipt and release on the part of the plaintiff and the other creditors, but it required “ the amount of each claim to be settled and adjusted ” by the receiver, and this fairly implied the taking of such receipt and release. It is true the proposition, to compromise emanated from the firm alone, and the accord is silent as to the “validity” of the claim; whereas the release acknowledges the receipt of the amount paid by the plaintiff
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.