143 Wis. 639 | Wis. | 1910
E The proposition advanced by the defendant that the agreement to repurchase the stock, if any was made, constituted a separate contract and was void under sec. 2308, Stats. (1898), on the ground that it rested in parol and there had been no sufficient part performance to take it out of the statute, cannot be sustained. It was held in Vohland v. Gelhaar, 136 Wis. 75, 116 N. W. 869, that where stock is sold, paid for, and delivered pursuant to a transaction wherein the vendor, as a condition of the sale, agrees to repurchase it at the option of the buyer, the whole constitutes but an entire original contract that is sufficiently performed to take it out of the statute.
2. It is claimed that the finding of the jury that the subscription cards were not signed by the purchasers at or before the sale of the stock is not sustained by the evidence. As to one purchaser it was admitted that he signed no card. The evidence was clear and convincing as to some of the others that they did not sign any, and as to the balance there was such a conflict that the jury well might find either way. Upon such state of the evidence this court will not disturb the finding.' But even if it were admitted that each purchaser signed the subscription card at or before the sale was made, such fact would not preclude oral testimony to prove that defendant agreed to repurchase; for it would in no wise vary or contradict the writing. Moreover, the subscription card is a
3. The claim is made that the assignments to, and agreements with, the plaintiff, set out in the statement of facts, show that he is not the real party in interest and, therefore, has no right to maintain the action. It is evident from a mere inspection of the assignments and agreements that the plaintiff was at least an assignee for collection. As such he was entitled to maintain the action. Wooliscroft v. Norton, 15 Wis. 198; Gates v. N. P. R. Co. 64 Wis. 64, 24 N. W. 494. But the assignments are absolute in form and vest the entire apparent legal title in the assignee. This is a sufficient protection to the defendant. He cannot be subjected to a second action by the assignor or any one, and is in no position to question the effect or validity of collateral agreements to ae--count for the proceeds to the assignor or to apply them as directed by him. Such collateral agreements do not render him any the less the real party in interest. Pomeroy, Code Eem. (4th ed.) § 70; Crowns v. Forest L. Co. 99 Wis. 103, 74 N. W. 546; Chase v. Dodge, 111 Wis. 70, 86 N. W. 548; Brossard v. Williams, 114 Wis. 89, 89 N. W. 832. In Robbins v. Deverill, 20 Wis. 142, Dixon, C. J., was of the opinion that an assignment, though absolute in form, did not constitute the assignee the real party in interest where it appeared that he held it in trust for the firm of which he was a member. It was not, however, necessary to decide the question in that case, and the court in a separate opinion says:
“We agree with the chief justice in affirming the judgment, but not in all his reasoning. We express no opinion as to whether the plaintiff is the trustee of an express trust within*644 the statute, or is the real party in interest, so as to sue in his-own name.”
4. A number of errors relating to rulings upon the admission of evidence are relied upon to reverse the judgment. In view of the decision "on the questions already discussed, only two need consideration. The witness Juve was permitted to-answer this question: “As I understand it, when you say you think it is your signature you base it simply upon the resemblance of the handwriting ?” This was objected to as leading- and improper. The witness had been examined at length as to whether or not the name upon the subscription card was., his signature, and this question merely embodied a summary of a portion of his testimony on the subject. Under such circumstances it was not error to permit it to be answered,— certainly not prejudicial error. Besides, the trial court is. vested with a large discretion as to when it is proper to allow leading questions, and the exercise of that discretion will not. be disturbed except when it is clearly abused.
The defendant was not permitted to answer either of the-following questions: “In fact, whose stock were you selling ?” “State what the fact is, Mr. Barrett, as to whether you were-selling your own stock or the stock of the company.” This is-assigned as error. Neither question called for what was said or done during the transaction or conversation when the sale-vras made. Both merely called for the conclusion of the witness as to a fact not in issue, and the court properly excluded the answers.
5. The respondent printed a supplemental case of twenty-nine pages. This was entirely unnecessary. Some of the-matter contained in it is not found in the bill of exceptions, at all. Other portions relate to questions not raised by the appeal, and still others merely contain the testimony in the form of questions and answers instead of in the narrative-form in which it is correctly given in the original case. Respondent will therefore be allowed no costs for printing the-supplemental case.
By the Court. — Judgment affirmed.