Carpenter v. Momsen, 92 Wis. 449

Carpenter v. Momsen

92 Wis. 449 | Wis. | 1896

The following opinion was filed January 28, 1896:

NewmaN, J.

The appellant concedes that generally an agent, in such relations as existed between Day and the respondent to this subject matter, could not recover at law for interest so voluntarily advanced without the knowledge of *454bis principal, but claims that equity will inquire an accounting and. repayment in cases where the property which is subject to the principal’s lien is sufficient to satisfy the demands of both principal and agent, so that after satisfying all the demands of the principal the agent may be reimbursed from the residue. It is not necessary to consider very closely the validity or scope of this projjosition, for it is not clear that, if correct, it has any application to this case; for as yet it is not established that there will be a residvmn after the respondent has received her own. That such a result is even probable cannot be said to be satisfactorily shown. The only testimony bearing upon that question is the testimony of Day himself. He estimates, .upon consideration of the judgment and caution which he deems his agents to have bestowed in. the investigation of the character and value of the lands at the time when the loans were placed, and of his own general knowledge of the character and value of the lands, derived in passing through the country on railroad trains, and “if the lands are properly handled,” that there will be a surplus. It is manifest that such estimates, based upon such superficial and limited knowledge, are not very trustworthy as evidence of the probable value of the lands. Especially in view of the experiences in recent years of the depreciation and demoralization of the prices and values of farming lands in those newer parts of the country, whereby prices and values have been broken down so as to be, in many cases, scarcely more than nominal, such estimates are as untrustworthy and unsubstantial as the “ baseless fabric of a vision.”

The appellant also contends that the respondent should reimburse all the taxes paid by Day,— those paid before, as well as those paid after, he had received the mortgages for collection,— and all disbursements which Day made in the foreclosure of the mortgages, as well his own second mortgages as her mortgages; for, he urges, all these disbursements have inured to her benefit through the voluntary *455•quitclaim of the lands to ber. But these quitclaims were never delivered to or received by her, and she had an election whether she would receive them with such a burden. It might well be more to her profit to foreclose her own lien than to assume these charges. As to her, such disbursements were merely voluntary payments, made for the purpose of protecting his own interest in the lands. They are •of no concern to her unless, with full knowledge, she elects to receive title through his foreclosures, and so ratifies his •doings in that regard.

Day had no lien upon the papers and securities in these nine particular loans for reimbursement of expenditures which he may have made on account of other loans. "Whatever lien he may have had upon any of the respondent’s papers was a specific and particular lien, and not a general lien. No one who is not an attorney at law has a general lien upon his client’s papers. This general lien upon a client’s papers is peculiar to the profession of attorney. Jones, Liens (2d ed.), § 125; Hollis v. Claridge, 4 Taunt. 801; Arthur v. Sylvester, 105 Pa. St. 233; Mechem, Agency, § 685. And the lien arises only from professional employment. Worrall v. Johnson, 2 Jac. & W. 214, 218. It does not appear that Mr. Day was an attorney at law. It appears that the respondent has tendered at least the amount of all the disbursements made by Day on account of the several loans represented by the papers of which the possession is controverted in this proceeding, which were a lien upon any of the papers involved. She is entitled to the possession of the papers.

By the Court.— The judgment of the circuit court is affirmed.

The appellant moved for a rehearing. The following ■opinion was filed March 10, 1896:

NewMAN, J.

In his brief on a motion for a rehearing the appellant complains that “the decision . . . affirms a *456judgment that requires, among other things, the appellant assignee to deliver a note of $700, given in the Liscomb loan, which he never had and cannot produce; and there is absolutely nothing in the record .to justify the finding upon which said judgment, in that particular, is based.” This were indeed a serious error if it were true. But it is not true. All that there is in the record relating to this matter of the Liscomb note is in the pleadings. The answer, according to well-settled rules of pleading, admits that this Liscomb note came to the hands of the appellant, and he does not show that it is not now within his control. The allegation of the. petition is that “ the same came to the hands of the assignee.” The denial is, on information and belief, that “ he has not the note demanded, but it is in the hands of a former agent of Day.” As a denial it is evasive, as being a negative pregnant, and because it attempts to deny on information and belief what is presumptively within his personal knowledge. The other grounds of the motion are not such as require treatment at length.

By the'Oourt.— The motion for a rehearing is denied.