209 Wis. 76 | Wis. | 1932
In 1922 the defendants owned land in Lincoln county upon which there existed a $1,000 mortgage..
“That is the best I can do until next February and I will be able to pay you the balance, arid wish you would please send me a receipt for the amount, and wish you would let me know if you will make out another mortgage for the $1,100.”
On February 16th thereafter Runke acknowledged the receipt of the $505 and inclosed a formal receipt for the
Whether any other letters passed between Runke and Mr. Shankwitz between February 12th and April 25th does not appear. Under date of May 2d Runke wrote a letter to Mr. Shankwitz in which he acknowledged receipt of a registered letter in which a money order for $100 was inclosed. In that letter Runke inclosed a note and mortgage covering the defendants’ lands, dated April 18, 1927, payable to Lena Freiburg one year after date. Runke informed Mr. Shank-witz of the amount of interest necessary to take care of the interest on the balance of the existing loan for two months, or up to April 18th. The defendants signed the note and mortgage and returned them to Runke without witnesses or acknowledgment, together with $12.84, the amount of the requested interest. Under date of May 9th Runke acknowledged the receipt of the $12.84 and returned the note and mortgage to the defendants for the reason that the mortgage was neither witnessed nor acknowledged. Whether the defendants returned this note and mortgage to Runke does not clearly appear. The note and mortgage were, however, produced by the defendants upon the trial. On or about the 12th day of May the defendants signed another note dated April 18, 1927, and another mortgage dated May 12th which was duly witnessed by a Chicago lawyer and a Chicago notary and which was duly acknowledged by the defendants. That note and mortgage were payable to Ignatz Frisch and Emilie Frisch, husband and wife, the
The trial court found, among other things, that the defendants executed the note and mortgage and returned them to Runke, their agent, to deliver the same to the Frisches, and receive the $1,000 on behalf of the defendants; that Runke was acting as the agent of the defendants when he obtained the loan from the plaintiffs, for which the mortgage in the amount of $1,000 was executed by the defendants to the plaintiffs; that Runke received from the plaintiffs $1,000 for this mortgage, on behalf of the defendants for whom he was acting at that time, and that Runke misappropriated the $1,000 to his own use instead of paying it over to Lena Freiburg. The trial court concluded that the plaintiffs were entitled to the relief demanded in their complaint and ordered judgment of foreclosure and sale. Defendants excepted to the findings of the court that at the time Runke delivered the note and mortgage to the Frisches and received the $1,000 he was acting as their agent. The defendants contend here that such findings are against the clear preponderance of the evidence, and further contend that at the time Runke received the $1,000 he was acting, not as the agent of the defendants but as the agent of Mrs.
It is very apparent that this controversy involves merely a question of fact and that that question was peculiarly one for the trial court to determine. The sole question is, For which of the parties did Runke receive the money and possess it at the time it was converted? Compare Merriam v. Haas, 154 U. S. 542, 14 Sup. Ct. 1159; Engleman v. Reuse, 61 Mich. 395, 28 N. W. 149; Murphy v. Becker, 101 Minn. 329, 112 N. W. 264 (wherein the facts are quite similar to those in the present case); May v. Mutual Benefit Life Ins. Co. 72 Mo. App. 286; Owings v. Howington, 31 Okla. 651, 124 Pac. 1058; Fatta v. Edgerton, 157 App. Div. 852, 143 N. Y. Supp. 225; Larson v. Butler, 26 N. Dak. 426, 144 N. W. 1077.
We have carefully examined the whole record with the result that we conclude that the findings are amply supported by the evidence and that there is almost a complete dearth of evidence even tending to prove that Runke was, at the time of receiving the money, acting as the agent of Mrs. Freiburg. As hereinbefore stated, Mrs. Freiburg at all times had the possession of the note and mortgage. There is nothing in the record tending to show that she was anxious to have her mortgage paid at maturity or that she had authorized or. requested Runke to collect it. The fact that she retained the note and mortgage in her possession would tend strongly to rebut any inference that Runke was acting as her agent at the time he received and misappropriated the $1,000. Wiesner v. Kosiedowski, 182 Wis. 521, 193 N. W. 374, 197 N. W. 208; Bartel v. Brown, 104 Wis. 493, 80 N. W. 801; Kohl v. Beach, 107 Wis. 409, 83 N. W. 657. Unfortunate as the outcome of this action is for the defendants, it is only just, under all of the circumstances,
By the Court. — Judgment affirmed.