Felch v. Lee

| Wis. | May 15, 1862

By the Court,

Cole, J.

We have frequently decided that in equity cases, tbe finding of facts by tbe court below was not conclusive, but that we would look into tbe testimony and determine what facts were established by it. This must beso, since tbe constitution gives this court appellate jurisdiction of cases at law and equity, and by tbe well established rules of practice, tbe appellate court reviews tbe evidence in equity causes in tbe same manner as tbe court of original jurisdiction. In common law cases tbe rule is otherwise. And therefore the position of tbe counsel for tbe respondent is not correct, that we must assume that tbe facts hi tbis action are as stated by tbe circuit court, and tbat we can only look into tbe cause for tbe purpose of determining whether tbe conclusions of law were warranted by tbe facts found. Tbis we do not understand to be tbe law controlling tbis court in equity causes.

Nor do we deem it necessary tbat there should be, in such a case, a motion for a new trial, in order to give tbis court a right to review tbe evidence. The cases cited by the counsel to this point were actions at law, and are therefore inapplicable to tbe one at bar. It is our duty then to go behind tbe finding of tbe circuit court, and determine for ourselves what facts are satisfactorily established by tbe testimony in the cause. And we are unable to agree with the circuit court in the conclusion, tbat tbe evidence shows tbat after tbe giving of the Chaffee note which is mentioned in tbe case, an agreement was made between tbe appellant and Bichard Lee, by tbe terms of which tbe latter was to surrender up to the former tbe real estate which he had purchased and held a contract for, with what improvements he had made thereon, and tbat in consideration thereof the appellant agreed to pay the note which he and Bicha/rd Lee bad given Chaffee. It is true there is some testimony in the case tending to show that some such agreement was made, but to our minds it is very slight and unsatisfactory. Tbe respondent Bichard Lee says, in a very confused and halting way, tbat such an agreement was made. His son William and daughter Betsy testify to bearing some conversations between their father and tbe appellant, in which Belch proposed or said to Lee, if he would give tbe land back, be, Fetch, would see tbe Chaffee note straightened up or paid. But it must be admitted tbat even tbis testimony in regard to conversations and admissions made by tbe parties, is exceedingly indefinite and unreliable. It is certainly subject to more than the usual degree of imperfection and weakness belonging to that kind of testimony, because the witnesses do not pretend to have beard or understood all tbe conversation between tbe parties. We therefore think it is entitled to but little weight under tbe circumstances.

On tbe other band, tbe appellant swears most positively and distinctly tbat no sucb agreement was ever made. And npon this point we think his testimony is entitled to very great credit, because it is so fully sustained and corroborated by what Kellogg says occurred before him. Kellogg was a disinterested party, mutually agreed upon to settle the differences between the appellant and Richard Lee, growing out of this land purchase and surrender. Lee had been claiming, after the surrender of the real estate, that Felcli should pay this Chaffee note. Fehh denied that he was under any obligation to pay it, and proposed to submit the matter to any one whom Lee might name, to say whether, under the circumstances, he ought to pay that note. The parties met before Kellogg and stated the facts in respect to the purchase and sale of the real estate; the payments which were made; the giving of the Chaffee note ; the abandonment by Lee of the contract; the agreement by Fetch to take back the land, and release Lee from further liability on the contract. But in this statement nothing was said about the alleged agreement of Fetch to pay the Chaffee note in consideration of Richard Lee surrendering up the real estate which he had bought of him. Is it not probable that this fact would have been stated to Kellogg by one or the other of the parties, if it really had been part of that agreement ? More, is it not impossible to believe that so material and essential a part of that agreement as the payment of the Chaffee note, should have been overlooked or omitted by Lee, if Fetch had agreed to pay it? Yet it was not claimed or even mentioned by either party before Kellogg, that it had ever been agreed that Fetch was to pay the Chaffee note, and save Lee harmless therefrom. We are therefore forced to the conclusion that no such agreement was ever made.

It is a conceded fact in the case that Fetch signed the Chaf-fee note merely in the character of surety. He was not, then, primarily bound to pay it as between him and Richard Lee. The latter was the principal debtor. It appears that Chaffee afterwards obtained judgment on the note and was proceeding to enforce collection of the judgment by execution. Some three hundred dollars worth of personal property belonging to Lee was seized in execution and advertised for Sa^e Ueifoi'e sale, a loan of money was effected- of Camp-sufficient to discharge tbe judgment. Tbe judgment however was not discharged of record, but it was assigned to the respondent Thomas Lee, who claims to be the real owner of it, and who is endeavoring to enforce its collection as against the appellant. This, perhaps, he might lawfully do were he the real owner of that judgment. But we are satisfied that he is not. It is true he loaned the money from Campbell. But Richard Jjee gave his note and a mortgage upon his own property to secure the repayment of this money. And we think the evidence shows that Thomas acted merely as the agent of Richard in obtaining this loan from Campbell. We are authorized to assume that Richard was the real party who got the money of Campbell, and paid a judgment which in law he was bound to pay. Of course such payment discharged the judgment, and its collection ought not to be enforced for his benefit against his surety This is clear upon the most obvious principles of law and justice.

It follows from this that the appellant was entitled to an injunction restraining the collection of the judgment mentioned in his complaint.

The judgment of the circuit court must therefore be reversed, and the cause remanded to the circuit court with directions to grant the appellant the relief asked for in bis complaint.