Kalckhoff v. Zoehklaut

43 Wis. 373 | Wis. | 1877

Lead Opinion

Cole, J.

A number of errors are assigned for a reversal of the judgment, but we do not deem it necessary to notice them in detail. In respect to some of the exceptions, it must be borne in mind that the defendant Zoehrlaut was an accommodation maker of the note in controversy. This he substantially admits in his answer. The comment made by the county judge upon his testimony, which is excepted to, would therefore seem unimportant. The county judge'stated to the jury that Zoehrlaut had testified in reference to the manner in which he had signed the note; that the witness thought he indorsed it, but did not swear positively to that fact. As Zoehrlaut had distinctly admitted in his answer that he was an accommodation maker, all question of indorsement was out of the case, and it was immaterial what he had testified to on the subject. And so in regard to the question of damages. If Zoehrlaut had wrongfully converted, or destroyed, his own note, why would not the ordinary rule as to damages apply, namely, the amount of the face of the note and interest, as constituting, prima facie, the value of the security? We can perceive no reason for adopting a different rule in the case. Of course the defendant had the right to show, in mitigation of damages, any fact, such as part payment, which would legitimately tend to reduce the amount of recovery. In answer to the third question submitted, the jury found that no part of the note had been paid. On the trial, the record in certain bankrupt proceedings was offered in evidence, from which it appeared that the principal makers of the note, Robert and Ferdinand Kalckhoff, had been discharged in bankruptcy, intermediate the conversion of the note and the bringihg of this action. It is insisted, that on this evidence the question should have been submitted to the jury, under proper instructions, whether that dischai’ge was not procured by plaintiff’s consent, and if that fact were established, it is said, the recovery should have been only nominal. It is a sufficient answer to this argument, to say that the defendant asked no special verdict, nor instruction, upon any such issue or question, as he should have done to raise the point now made. Besides, it was conceded that it does not appear in the record of the bankrupt proceedings that this note was proven as a claim against the estate of the bankrupts. So the question as to what effect should be given in this action against one wrong-doer, to a dischai-ge in bankruptcy of another wrong-doer, by consent of the plaintiff, is not presented nor considered.

A further excejotion was taken to the refusal of the court to give tlie fiftli special request asked by the defendant, which was that “ the witness Ferdinand Kalckhoff having admitted himself to be guilty of the alleged charge, this goes to the credibility of his testimony, and it should be carefully considered, and, unless corroborated by other credible evidence, the jury are warranted in regarding it with suspicion.” It was" conceded that there was a mistake in this instruction, and that it referred to the witness Robert Kalck-hoff, instead of Ferdinand. But the court, instead of giving the instruction, charged the jury that if they found that Ferdinand, or Robert, or any other witness, had testified falsely with reference to any material fact, they were at liberty to disregard the whole testimony of that witness, unless it was corroborated by other credible testimony. This charge covered the law of the case, and was all the defendant had the right to ask for. The rule relating to the credit due the testimony of an accomplice in a criminal case, would not seem to have any direct application.

The only remaining exception to be noticed is the one taken to the ruling of the court denying the motion to set aside the verdict, for leave to file an amended answer, and for a new trial. This motion was made under sec. 38, ch. 125, R. S. The “ surprise ” stated in the affidavits read in support of the motion was, that the counsel having charge of the ease overlooked, or did not consider, the effect which the discharge of the principal makers of the note in bankruptcy would have upon the contract of the defendant, and so failed to set up that defense in the prior amended answer. We will not consider whether the proposed answer states a defense to the action. It is enough to remark that the application made was addressed to the discretion of the court below, and it is impossible to say, under the circumstances, that there was such an abuse of discretion in denying the motion as would warrant this court in reversing the decision.

By the Gov/rt. — The judgment of the county court is affirmed.

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Rehearing

The appellant moved for a rehearing.

Ryan, C. J

Affidavits and records not in the return to the appeal, are filed here in support of the motion for rehearing. Nothing but the return, and arguments founded on the return only, can be considered on such a motion. Bonin v. G. B. & M. R’y Co., ante, p. 210. It would be worse than idle to grant a rehearing on papers which could not be considered on the rehearing itself.

A very elaborate argument was filed in support of this motion. It has not shaken the faith of the court in the correctness of the decision on the appeal; and it is not considered necessary to go over the ground again.

But the learned counsel who make the motion complain that the opinion on the appeal states concessions on their part, which they did not make. We cannot doubt that the complaint is made in good faith, but it is none the less unfounded. For instance, the opinion states that it was conceded that one of the instructions of the court below related to Robert Ealck-hoff, not to Ferdinand. So the instruction was written, and so counsel did concede; contending, however, that this court should read Ferdinand for Robert in the instruction, because it would fit Ferdinand better than Robert. Again, the opinion states that it was conceded that it did not appear in the record of the bankrupt pi’oceedings, that the note in question in the case was proved against the estate of the bankrupts. So it did not appear; and so counsel did concede; arguing, however, that, by certain arithmetical calculations, the amount of the note could be produced in figures in the bankrupt record ; and that this court must surmise that the sum so found represented the note and nothing else, in the bankrupt proceedings, and so abandon the solid verity of the record for a flight of fanciful conjecture.

It is thus apparent that the fault of the opinion, of which counsel must be taken really to complain is, not that it misstates counsel’s concessions of the truth of the record, but that it declines to follow him in argumentative suppositions outside of the record. Imputations of the kind considered ought not lightly to be made; and we make the correction, partly in justice to the court, showing that the opinion does not misrepresent counsel; and partly in justice to counsel, showing that they did concede the facts apparent in the record.

By the Court. — The motion is overruled.