1 N.W.2d 73 | Wis. | 1941
Action for conversion brought by Ruth Ebenreiter against Arthur Woulf, individually and as administrator of the estate of Henry Von Nobel, deceased, to recover the contract price of certain items of personal property, which she sold to Von Nobel under conditional sales contracts, and which she alleged were converted by the defendant. Woulf filed an answer denying the conversion; and he alleged that plaintiff had an adequate and complete remedy in the county court in the proceedings for the administration of Von Nobel's estate; that in those proceedings plaintiff had failed to file her claim as required by an order limiting the time in which claims might be filed; and that it was therefore barred by sec. 313.08, Stats. After a trial on the merits, judgment was entered dismissing the complaint. Plaintiff appealed. *229 This is an appeal from a judgment dismissing the complaint in an action for conversion brought by the plaintiff, Ruth Ebenreiter, against Arthur Woulf, individually and as administrator of the estate of Henry Von Nobel, deceased, to recover the contract price specified for items of farm equipment, livestock, poultry, and hay in conditional sales contracts entered into between Von Nobel and Ruth Ebenreiter. The contracts were duly filed in Marinette county where the property was kept on Von Nobel's farm. After his death in 1938 and the appointment of the defendant Woulf as administrator of his estate by the county court of Marinette county, Woulf took possession of the personal property. He petitioned the county court for leave to sell the personal property and on April 14, 1938, the court made an ex parte order authorizing the sale. Thereupon Woulf sold the property involved herein, with the exception of hay which was fed to the livestock on the farm. Woulf fully accounted for the proceeds of the sale in the probate proceedings.
Plaintiff charges that the sale of some of the property and the use of the hay constituted the conversion thereof to her damage in the sum of $686.30, which is the total of the purchase prices specified in the conditional sales contracts for the items of property charged to have been converted. Upon the trial of this action it was proven that in the administration proceedings plaintiff had duly filed a claim for $932.75, which was the total of the contract prices specified for all items of property sold under the sales contracts, including the items for which plaintiff seeks to recover herein. On September 30, 1938, the county court allowed her claim for the entire sum of $932.75, as filed by her, and a provision for her recovery of *230 that amount was included in the judgment on claims entered on November 13, 1940, in relation to all claims similarly allowed.
Upon these facts the circuit court concluded that plaintiff elected her remedy by filing her claim in the county court to recover the prices specified in the conditional sales contracts for all property sold thereunder, and by prosecuting her claim therefor to judgment against the estate in the county court; that she thereby had her day in county court on the identical claim made in this action, and is estopped from prosecuting this action; that the defendant individually committed no conversion of plaintiff's goods; and that plaintiff's complaint must be dismissed.
On this appeal from the judgment entered accordingly, plaintiff contends that the defendant had notice that she was owner of the property in question and that his use of the hay to feed the cattle and his sales of other items of property constituted conversion thereof; that she did not waive her security; and that she was neither estopped by her conduct from prosecuting this action, nor deprived thereby of her security. On the other hand, defendant contends that the county court judgment allowing the claim filed by plaintiff at the identical contract prices for each item of property that she seeks to recover in this action for the conversion thereof is a complete bar to the recovery of a second money judgment for that contract price, as damages for conversion of those same items of property; that the plaintiff could have but one satisfaction of such money judgments, to wit, the larger judgment entered in the county court; and that her claim to recover herein the identical contract price as such damages has become and must be held merged in the county court judgment. These contentions must be sustained.
In this action to recover damages for the alleged conversion plaintiff seeks a money judgment for the identical amounts that constituted the contract prices of the same property as to *231
which she filed a claim and has recovered judgment in the county court. Inasmuch as there is included in that judgment the recovery in her favor of the identical sum for which she claims the right to, recover a money judgment also in this action for conversion, the circuit court rightly concluded that her claim had become merged in the county court judgment.Jameson v. Barber,
"As good an illustration as can be found in the books of the situation where the doctrine of merger applies isCaylus v. N.Y., K. S. R. Co.
By the Court. — Judgment affirmed. *233