152 Wis. 160 | Wis. | 1913
Tbe order appealed from sustained a demurrer to a complaint containing tbe following averments of fact:
(1) On December 9, 1910, one Mary Nelly, by tbe defendant, Charles N. Brown, ber attorney, began an action against tbe plaintiff before a justice of the peace and at tbe same time garnished a debtor of tbe plaintiff. Judgment was recovered therein in favpr of Mary Kelly and against tbe plaintiff for $116.32, and in tbe garnishment case in favor of Mary Kelly and against tbe garnishee defendant for $121.07. Tbe garnishee paid this sum last-mentioned to tbe justice.
(2) Tbe plaintiff in this action, defendant in that, appealed from tbe said judgment to tbe circuit court without supersedeas, and pending this appeal attorney for appellant therein and tbe defendant Brown negotiated'for a settlement, and tbe latter stated that unless a settlement could be made
(A) Sec. 3772, supra, provides that if a justice’s judgment, or any part thereof, be collected and tbe judgment be afterward reversed, tbe appellate court shall order tbe amount collected to be restored, witb interest from tbe time of tbe collection; such order may be obtained upon proof of tbe facts, upon notice and motion, and may be enforced as a judgment.
(B) Tbe appellant at tbe time of presenting bis appeal from tbe order sustaining a demurrer to tbe foregoing complaint presents a motion against tbe defendant to compel tbe latter to refund to tbe appellant tbe said sum of $121.07 with motion costs and disbursements. Tbis motion must be-denied, because tbe defendant has not yet been adjudged guilty of tbe matters and things charged against bim in tbe
(O) The case is not presented very thoroughly. We expect counsel in presenting precedents to make first choice of those in this court. The case of Wright v. Eaton, 7 Wis. 595, should not have been overlooked. There an agent for collection retained out of moneys collected from Eaton a certain sum for his fees and expenses. He gave the debtor no credit for this sum, but proceeded by levy to collect the unpaid balance. After he had remitted to his principal all the money except that retained for his fees an action was brought against him. The court said:
“The fact that the claimant obtained this money ... as an agent, if wrongfully obtained, cannot absolve him from his liability to the person from whom it was thus wrongfully obtained, although he had paid it over to his principal.”
As long ago as Hearsay v. Pruyn, 7 Johns. 179, 182, it was said:
“The law is, I believe, well settled that an action may be sustained against an agent, who has received money to which the principal had no right, if the agent has had notice not to pay it over; and, in some cases, the action has been sustained where no notice was given, if it appears that the money has not actually been paid over.”
See, also, Houston v. Frazier, 8 Ala. 69; Shepard v. Sherin, 43 Minn. 382, 45 N. W. 718; Garland v. Salem Bank, 9 Mass. 408; Story, Agency (9th ed.) §§ 300, 301; Mechem, Agency, § 561 and cases cited; Bank of U. S. v. Bank of Washington, 6 Pet. 8; Cabot v. Shaw, 148 Mass. 459, 20 N. E. 99; Haunstein v. Ruh, 73 N. J. Law, 98, 62 Atl. 184.
(D) It is contended, however, that by entering an order of restitution against the principal under see. 3712, supra, the plaintiff in this action elected to discharge the defendant herein and pursue only defendant’s principal. The defendant in this case was not a party to the action in which the order of restitution was entered. It could not have been entered against him. He might well demand, if this order was omitted, that plaintiff should have taken that step for the due protection of the defendant. Upon payment he would be entitled to subrogation. The remedy sought in this action against the defendant is not inconsistent with the talcing of such order of restitution against his principal, nor is the statutory remedy exclusive. Harrigan v. Gilchrist, 121 Wis. 127, 441, 99 N. W. 909. No rule of election of remedies controls, because this remedy invoked by this suit is the only remedy the plaintiff ever possessed against the defendant herein.
It follows that the order of the circuit court sustaining the defendant’s demurrer must be reversed, and the cause remanded for further proceedings according to law.
By the Court. — It is so ordered.