57 Wis. 534 | Wis. | 1883
The arrangement entered into would, doubtless, have had the effect to release the defendant from his liability to account to the plaintiff for the money, had there been no fraud in the transaction. But the Pennoyer note and mortgage were forged and worthless, so that the plaintiff received no consideration for the transfer of his Ernst securities and his claim on the defendant for the money. And though Thiers
Now, the inquiry is, What is there in all these facts which shows that the plaintiff is estopped from claiming of the defendant the money collected on the Scott mortgage? The ■learned counsel for the defendant says the plaintiff stated or .admitted to his client, when asked the question in the spring, that Thiers had paid him that money. The plaintiff then •undoubtedly supposed he had been paid through the purchase of the Pennoyer securities. He was then ignorant of the forgery which rendered those securities worthless, and was mistaken in supposing them valid.' Still, if the defendant, relying on this admission or statement of the ■ plaintiff ¡that the money had been paid, had acted upon it to his injury, the plaintiff might be estopped from saying it was not paid. Rut he did not. All the defendant did do was to credit Thiers upon the firm books with this money and ■charge himself with it. This was the only change in his position in regard to' the money. It does not appear that he ever delivered the money to Thiers, or surrendered any security which he held against Thiers on the faith of this admission of payment, or that he can or will be prejudiced in any manner by the entry made upon the firm books. Upon the evidence as it now stands we are authorized in saying that the defendant has simply given Thiers a credit upon the books of the firm to which he was not entitled. That is all that is shown. Now, it is essential, to create' an estoppel, to show that the defendant was induced by the admission of payment to do something to his prejudice if that admission should be withdrawn or contradicted. And the ■defendant was bound to affirmatively show that he was injured by making the credit on the books, or the estoppel is not made out.
Again, it is said that plaintiff should have disclosed to the defendant his suspicions as to the integrity and honesty of Thiers. We do not think the plaintiff, under the circumstances, was under any obligation to communicate these suspicions to the defendant. It does not appear what ground he had for 'entertaining them; he certainly did not .know that they were well founded. Besides, he might reasonably have supposed that the defendant, who had an office in the same room and was intimately connected in business matters with Thiers, would be as likely to find out whether he was dishonest or not as himself. And it is certainly strange, considering the series of forgeries and swindling .transactions carried on by Thiers for a long time, that the defendant’s suspicions were not aroused; but it seems they were not.
After' the evidence was all in, it was stipulated and agreed by counsel in open court that there was no question of fact to go to the jury, and that the court should pass upon the questions of law and direct a verdict as the legal questions should be determined. The counsel for the defendant asked the court to give several instructions to the jury, which, in view of the stipulation, would not seem to have any office in the case. The facts being undisputed, the court could direct a verdict according to his view of the law. But the' same counsel took exceptions to the refusal of the court to give his instructions. We shall not consider these exceptions in detail; we think they are inconsistent with the views which we have expressed, and were, therefore, properly refused.
By the Court.— The judgment of the circuit court is affirmed.