Gates v. Avery

112 Wis. 271 | Wis. | 1901

Barden, J.

In his brief filed on the appeals from the two orders in this case, the plaintiff offers no reason to support the same, save that the court erred in granting the nonsuit. The orders were not appealable unless they can be brought under some one of the provisions of sec. 3069, Stats. 1898. On the argument his counsel attempted to show that such appeals were justified under subd. 3, which permits an appeal from an order which “ sets aside or dismisses a writ of attachment for irregularity.” Having secured an attachment of certain lands of defendant, his theory is that the order of nonsuit had the effect to dissolve and discharge the levy, and that, to preserve his attachment under secs. 2748 and 3061, an immediate appeal was necessary. It is quite evident that plaintiff, has not brought himself within the literal terms of sec. 3069. The granting of a nonsuit does not have the effect to “set aside or dismiss a writ of attachment for irregularity,” and there is no other provision of the section applicable to the situation. It is perhaps unfortunate that the statutes make no provision for the preservation of the attachment levy in cases of this kind. The view we have taken of the merits of this case renders it unnecessary to treat this branch of it at length. ~We are satisfied that the law does not make the order mentioned appealable. If the plaintiff who has been defeated desires to preserve the lien of his attachment, we know of no more rational solution of the situation, in absence of further legislation on the subject, than that suggested by Bunn, J., in Meloy v. Orton, 42 Fed. Rep. 513.

Turning now to a consideration of the appeal from the judgment, the plaintiff argues that the court erred in ruling that be should assume the burden of proof. This is based upon the assumption that the answer, as a whole, admits the plaintiff’s cause of action. We are satisfied that no such assumption is justified. The answer contains a general denial. This puts in issue every allegation of the complaint. It next says that the defendant-lias fully paid plaintiff all just, equitable, or legal claims or demands against him growing out of any matters mentioned in the complaint. Under-sec. 2657 a defendant may plead as many defenses as he may have, even though based upon inconsistent legal theories. South Milwaukee B. H. Co. v. Harte, 95 Wis. 592; Pomeroy, Code Remedies, § 722. The cases cited in Mr. Pomeroy’s, most excellent work indicate that a different rule prevails in but few of the code states. Minnesota is one mentioned as laying down a very strict rule against the pleading of inconsistent defenses, yet in Steenerson v. Waterbury, 52 Minn. 211, the court holds that a plea of payment in an answer is. not inconsistent with a general denial, and does not control it. In the discussion it is said, “ Separate and distinct defenses are consistent when both may be true, and are only held inconsistent when the proof of one necessarily disproves the other.” We see no good reason why the two defenses-may not be interposed and relied upon by the defendant, and therefore approve of the ruling of the trial court in this, respect.

The nonsuit was based, upon a failure of the proof to connect the defendant with the transaction set out in the complaint. The contract and deed put in evidence show a transaction with Parmly as trustee, but none of the beneficiaries are named in the instruments. No contract relation between plaintiff and defendant was shown. The subsequent declaration of trust executed by Parmly did not change the contract he had made, or create a contract between the parties to this suit. The trustee urns not an agent. When a trustee contracts as such, unless he is bound no on& is bound, for be has no principal. He bolds tbe estate to manage and control, and is personally bound by tbe contracts he makes, even when designating himself as “ trustee.” Taylor v. Davis's Adm'x, 110 U. S. 330. Tbe complaint runs upon tbe theory of a purchase of land by defendant from plaintiff. Tbe evidence failed to show any promise or undertaking on tbe part of defendant to pay any part of tbe purchase price. Tbe fact that be was one of several beneficiaries interested in tbe trust estate did not make him personally liable to the plaintiff upon the contract with tbe trustee. It should be noticed that tbe deed to Parmly, trustee, fails to name tbe persons interested as beneficiaries in the trust estate. Such relationship, while known by tbe parties at tbe time of the transaction, was not formally declared until some time afterwards, when the declaration of trust was made and recorded. Under these circumstances, tbe legal title did not vest in tbe persons for whose use and benefit tbe conveyance was taken, as claimed by plaintiff. Skinner v. James, 69 Wis. 605; Loring v. Palmer, 118 U. S. 321. Tbe action cannot be sustained on tbe theory that the defendant contracted with tbe trustee for tbe benefit of plaintiff. No such claim is made in tbe complaint, and the evidence does not support it. Tbe evidence offered regarding tbe draft of $4,500 given by Parmly to plaintiff at tbe time tbe first payment for the land was made was improperly admitted. Tbe trial court rightly refused to consider it as establishing a contract relation between tbe parties to this suit, under tbe allegations of tbe complaint. What their legal relations may be with reference thereto cannot be here considered, and tbe parties are left to settle that matter when properly drawn in controversy. Our conclusion is that the nonsuit was properly granted.

By the Court:— Tbe appeals from tbe orders are dismissed, and tbe judgment dismissing the action is affirmed.