Blackman v. Town of Dunkirk

| Wis. | Jun 15, 1866

Downer, J.

The circuit court erred in instructing the jury that “ if the town authorities, after notice of the assignment to Blackman & Boyce, paid this claim or any part of it to Cook or Gregory, such payment does not affect Blackman & Boyce, unless you should find that payment was made by their assent or the assent of their agent or attorney.”

It is not necessary to examine in detail the evidence. It is clear that there was testimony before the jury tending to prove that Wm. H. Cook assigned his claim against the town for $200 bounty money to the respondents for the purposes of collection, and that they were to have $25, and pay to him $175: and that the order of Wm. H. Cook in favor of John Cook, his brother, on Boyce, and by him accepted, was without consideration, and given to enable John Cook, as the agent of William, to get the money. There was also evidence tending to prove that John Cook knew of William getting the money, and assented to it. If the jury had found the evidence sufficient to prove the facts it tended to prove, then, if either the respondents or John Cook had received the money, they would have received it for- the use and benefit of William Cook, except perhaps the sum of $25. If so, why would not a payment by the town directly to William Cook, for so much of the money as, either his brother or the respondents would have received (if it had come to his or them hands) for the use of William Cook, be valid ? William, if not at law, certainly in a suit in equity in which all the parties interested should be before the court, with the same evidence as in this case, if the court found proven what the evidence tended to prove, could have recovered a judgment against the town, either for the two hundred dollars or fox such part of it as, if paid to his brother or Black-man & Boyce, -would Rave been received for Ms use. If so, and tire town paid it without such suit, the payment, at least in equity, must be good. The instruction given ignores entirely all the evidence tending to prove that William Cook, notwithstanding the assignment, still had an interest in the claim; and for that reason it is erroneous, and the judgment must be reversed.

We say nothing about the other points, as it is probable, from the affidavits used on the motion for a new trial, that the testimony may be different on another trial.

By the Court. — Judgment of circuit court reversed, and a ve-nire de novo awarded.