Case v. Beyer

142 Wis. 496 | Wis. | 1910

XeRWOT, J.

The question arises in this court whether upon the findings of the jury and the undisputed evidence the plaintiff was entitled to judgment below. No finding of the jury is necessary upon undisputed facts. It is only material controverted facts which need be submitted to the jury. Kerkhof v. Atlas P. Co. 68 Wis. 674, 32 N. W. 766; Howard v. Beldenville L. Co. 129 Wis. 98, 111, 108 N. W. 48; Hutchinson v. C. & N. W. R. Co. 41 Wis. 541, 553; Ault v. Wheeler & W. Mfg. Co. 54 Wis. 300, 11 N. W. 545; Berg v. C., M. & St. P. R. Co. 50 Wis. 419, 7 N. W. 347. The fact that the title to the note sued upon passed to the plaintiff is without substantial dispute. He was therefore the owner at the time of the commencement of this action, unless the findings of the jury negative such ownership. The only finding which can be claimed in any way to affect this question is the first, which, finds that the plaintiff did not purchase the note prior to its maturity in good faith paying therefor $425. This finding does not negative the title of the plaintiff to the note, hut only the bona fides of his purchase. This is clear from the other findings as well as the-■evidence. All the evidence is to the effect that the plaintiff bought the note, hut the controversy on the trial was whether he bought it in good faith and paid for it without knowledge ■of the equities between defendants and the payee, Agnew. The jury found in answer to the second question that when plaintiff procured the note from Agnew he had knowledge of the agreement between Agnew and the defendants. So the question of the plaintiff’s title to the note was not negatived by the verdict and was established by the evidence.

The third question is the one upon which the principal controversy arises. By their answer to this question the jury found that the failure of Lucy Anson to execute the mortgage mentioned in the agreement set out in the statement of facts was caused by the default of the defendants. This finding is well supported by the evidence. It is urged on the part of the plaintiff that the defendants cannot take advantage of the ■default caused by themselves, while on the part of the defendants it is insisted that they are entitled to stand upon the letter of the contract, and, the contract not having been carried •out by Lucy Anson, they are entitled to a return of the note, and the plaintiff, being a purchaser with notice, cannot recover. The evidence shows that Lucy Anson was always ready and willing to carry out the contract on her part. The contract contemplated good faith on the part of both parties to it and performance by both parties. Until the defendants tendered performance on their part Lucy Anson could not perform, and, the failure of performance or consummation on her part being caused by the default of the defendants, they cannot profit by such default. This doctrine is well supported by authorities. Maher v. Davis & S. L. Co. 86 Wis. 530, 57 N. W. 357; Danley v. Williams, 16 Wis. 581; Kellogg v. Nelson, 5 Wis. 125; Hoffman v. King, 70 Wis. 372, 36 N. W. 25; Williston v. Perkins, 51 Cal. 554; Read v. Davis, 35 Me. 379; Williams v. Bank, 27 U. S. 96; Attix, N. & Co. v. Pelan & Anderson, 5 Iowa, 336; Angelloz v. Rivollet, 2 La. Ann. 652. The doctrine is well stated in Jones v. Walker, 13 B. Mon. 163, at page 165, as follows:

“He who himself prevents the happening or performance of a condition precedent, npon which his liability, by the terms of the contract, is made to depend, cannot avail himself of his own wrong and relieve himself from his responsibility to the obligee, and shall not avail himself, to avoid his liability, of a nonperformance of such precedent condition, which he has himself occasioned, against the consent of the obligee.”

'The finding of the jury npon the third question of the special verdict, 'in connection with the evidence, establishes conclusively that the default of the defendants, without any fault on the part of Lucy Anson, occasioned the failure of performance of the agreement between defendants and Lucy An-son. Therefore the defendants have no defense to the note in the hands of the plaintiff, notwithstanding his full knowledge of the equities existing between Agnew and the defendants.

It is argued by defendants’ counsel that it must be held that the court below in awarding judgment on the verdict for defendants found, under sec. 2858m, Stats. (Laws of 1907, ch. 346), that plaintiff was not the owner of the note. If the court did so find, the finding was practically against the undisputed evidence and cannot be sustained. This is not a contest between a creditor and an assignee of property alleged to have been fraudulently transferred. The simple question is whether, on the evidence, the title to the note passed from Agnew, the payee, to the plaintiff, and it seems clear that it did. If the court found as claimed by defendants the finding is subject to review here without exception. Farrell v. Phillips, 140 Wis. 611, 123 N. W. 117. Under the foregoing late decision of this court, if such finding is against the clear preponderance of the evidence it may he set aside. We are therefore of the opinion that upon the findings of the jury and the evidence the plaintiff was entitled to judgment and that his motion should have been granted, and that the court erred in granting the defendants’ motion and awarding judgment dismissing the plaintiff’s complaint.

By the Court. — The judgment of the court below is reversed, and the cause remanded with directions to enter judgment for the plaintiff.