123 Wis. 120 | Wis. | 1904
It is undisputed that James A. Fraser-was in the employ of Currie Bros. February 3, 1893, and had’ been for some years. On or about that date Currie Bros, discovered that James A. had for some time been appropriating; their money to his use, without their knowledge or consent,, to the extent of $4,000 and upwards. When confronted with-the fact of such discovery, James A. admitted that he had so-converted the moneys of the firm to his own use to the extent 'mentioned. James A. was at the time about thirty-three years of age, and his father was about seventy-seven years of’ age. He was told by Currie Bros, that they wanted their-
The important question upon which the case must turn is whether the settlement of August 28, 1893, was valid and binding upon the deceased. There is certainly strong evi•dence tending to prove that the deceased was induced to make -that" settlement to prevent Currie Bros, from instituting criminal proceedings against James A. on account of such embezzlement. Such evidence is to the effect that about a month prior to the settlement James Currie called at the house of the deceased, and went upstairs and into his bedroom, and remained there with the deceased about an hour, with the door ■■closed, and during the time talked in a loud and excited manner about James A. and security, which was heard by those •outside, and that when James Currie left the bedroom he •came down stairs alone, and passed out without speaking to .-any one. After the discovery of the embezzlement, Mr. Moses
“In consideration of the above payment it is -understood' and agreed that criminal proceedings will not be instituted by us against said James Eraser for tbe above or any-other-amounts of money taken by him or for any other sum of" money which may have been taken by him.”
Tbat be then added at tbe suggestion of Mr. Currie a proviso to tbe effect tbat, if tbey should thereafter discover that' James A. bad wrongfully taken from them any sum in excess-of tbe $4,000, then he was to give them bis note therefor,.. and, if he should refuse, then nothing therein should prevent them from taking criminal action against him; and tbat the-language of the paper was bis own. Such agreement bears-date August 28, 1893, and is signed, -“Currie Brothers per James.” After a good deal of hesitancy, Mr. Currie virtually admits tbat bis signature to tbe paper is genuine, but claims-that be signed it without knowing its contents, and denies-that there was any understanding that they were to refrain from prosecuting James A. Tbe court refused to find whether such written agreement was in fact made. It is difficult to believe tbat Mr. Currie did -not know tbe contents o£
“Having advanced to or paid for my son James Eraser large sums of money I purposely and intentionally omit making any devise or bequest to him and'do intend and desire that 'he shall not receive any part or portion of my estate.”
This manifestly refers to the $2,225.25 and the $857.86 -so paid by- the deceased for the benefit of his son J ames A. Mr. James Currie is corroborated in some particulars by -other witnesses — especially by J ames A. Eraser. The transaction took place nearly ten years before the trial. The ■county court and the circuit court saw and heard all the witnesses, and hence those courts were each in a much better ■position to judge of the credibility of the witnesses than this -court. The claim of Currie Bros, against the estate of the deceased was allowed in both courts. In view of all the cir•cumstances, we cannot say that the findings of the trial court .are against the clear preponderance of the evidence. In reach
Several errors are assigned for the improper admission of ■evidence, and for the refusal to strike out testimony. The rule is well established that in a case tried by the court, as here, the improper admission of evidence is not available as •error upon appeal. Wolf v. Theresa Village M. F. Ins. Co. 115 Wis. 402, 405, 91 N. W. 1014, and cases there cited. If the evidence properly admitted supports the findings, it is ■sufficient. Id.
Error is assigned because the court permitted James Cur-rie to testify to transactions and conversations with the deceased when no one else was present, and for refusing to strike out such testimony. But it appears from the record that the defendant first called and examined him, under sec. 4068, Stats. 1898, as an adverse witness, and on such examination he had testified to the effect that he saw the deceased in regard to the embezzlement a few days prior to August 28, 1893, at his own house, and also at the house of the deceased, when they arranged to meet at Brand’s office, and that they met pursuant to that agreement, and that the purpose of the meeting was to adjust this embezzlement matter — to make a settlement which was afterwards made — and he was further asked and answered the question whether he ever promised the deceased that he would not prosecute his son. By such examination the defense opened the door, under sec. 4069, Id., for the admission of the testimony to which objection is now made.
There was no error in excluding the testimony of the defendant’s husband, who was offered as a witness generally in 'the case, and not as the agent of his wife.
The witness Campbell, after testifying at length as to his acquaintance and conversations with the deceased, and as to the trouble of the deceased with Currie Bros., and as to his
By the Gourt. — Tbe judgment of tbe circuit court is affirmed.