Burgess v. Commercial National Bank of Appleton

144 Wis. 59 | Wis. | 1910

E-ERWiN, J.

The complaint in this case alleges that the' amount of the note was $98,450 and the exhibit attached thereto, purporting to be a copy of the note, states the amount' to be $98,150. We have examined the record and find that the exhibit attached to the complaint corresponds with the-printed case, and we conclude that the statement in the complaint is correct and that the statement of the amount in the exhibit is merely a clerical error. We arrive at this conclusion from the fact that the circuit judge below in his written opinion, which is a part of the record, states the amount of' the note to be $98,450. However the variance is not material and would not affect the result.

The theory of the appellants’ case is that the amount of' money paid and sought to be recovered back was involuntarily paid by force of wrong and fraud of the defendants. As will be seen, there are no allegations in the complaint of facts showing fraud, the only allegation being that “defendants conspired together to fraudulently exact from the plaintiffs an excessive amount of interest.’’ This allegation, when construed in connection with other allegations of the complaint, is clearly insufficient to constitute actionable fraud.. Herbst v. Land & L. Co. 134 Wis. 502, 115 N. W. 119; New Bank v. Kleiner, 112 Wis. 287, 87 N. W. 1090. But counsel for appellants argue that the money was paid involuntarily and under duress, hence can be recovered back.

Counsel for respondents, to sustain the order below, insists-upon several points which may be summed up as follows v. (1) That' the payment was voluntary and made without duress and with full knowledge of all the facts, hence cannot be recovered hack; (2) that the facts set up in the complaint amount to an accord and satisfaction; (3) that the facts pleaded amount to an account stated; (4) that there were no sufficient allegations of fraud; and (5) that the plaintiffs are estopped from maintaining the action under the facts alleged.

,We do not deem it necessary to review the various positions taken by counsel for respondents beyond the first stated, namely, that the payment was voluntary with full knowledge of the facts, therefore cannot be recovered back. On this ground the court below held that the complaint failed to state a cause of action, and we are of opinion that it was clearly ■right in so holding. "We have set out in the statement of facts the complaint at length, from which it appears that all of the money paid was voluntarily paid, with full knowledge of the facts, hence it cannot be recovered back upon well settled principles of law. Clancy v. McEnery, 17 Wis. 177; Custin v. Viroqua, 67 Wis. 314, 30 N. W. 515; Powell v. St. Croix Co. 46 Wis. 210, 50 N. W. 1013; Shirley v. Waukesha, 124 Wis. 239, 102 N. W. 576; Raipe v. Gorrell, 105 Wis. 636, 81 N. W. 1009; Gage v. Allen, 89 Wis. 98, 61 N. W. 361. The complaint falls far short of making a case of payment under duress of person or property. Williams v. Phelps, 16 Wis. 80; Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495; York v. Hinkle, 80 Wis. 624, 629, 50 N. W. 895; Porter v. Cook, 114 Wis. 60, 89 N. W. 823.

By the Court. — The order appealed from is affirmed.