Kimball v. Johnson

14 Wis. 674 | Wis. | 1861

By the Court,

Dixok, O. J.

The questions involved in this case are principally of fact, and upon them we are unable to concur with the circuit judge. The testimony of the witness William Goff, if he is to be believed, fully sustains the plaintiff’s right to recover. We believe him. He testifies with fairness and candor, and with no attempt at prevarication or concealment. His history of the transaction is rational and consistent, and bears throughout inherent evidence of its truthfulness. It is corroborated in the most material points by other proof, and particularly by the documentary evidence, which is more certain and reliable in its character than the oral evidence of the witnesses. Even the books of the partnership, when seen through the mutilations and changes of the defendant Johnson, show that the monej was borrowed by him and used for the benefit of the firm of Johnson & Goff. The separate property of Mrs. Goff, the ante-nuptial contract and appointment of the trustee, and Goff’s agency in the management of her property, are established beyond any reasonable doubt. The deposit book of Mr. Goff in the hand writing of the teller of the bank, and the entries in the books of the bank show, in a manner which precludes all debate, that there was $600 deposited in the bank, and set apart as the money of Mrs. Goff. It is impossible to suppose that these books were prepared at the time, with a view to any anticipated effect which they might have upon this litigation. The same books show with equal clearness and certainty, that the $600 went towards the payment of the $950 bank note, and the $54 note to Simmons & Son. The pretense that Goff paid the cheek with the note of the company, or that he obtained the money by giving such a note, is entirely unsupported by the evidence.— When we consider the nature and amount of their business, and that Johnson was familiar with it and in possession of the books, it is incredible that Goff should have realized such a sum upon the note of the firm, and yet that Johnson should be unable to search out and establish the fact. No bona fide effort was made to prove it, and we do not believe that the claim was put forth from an honest conviction that such was the case. It is true that some questions are put to Goff upon that hypothesis, but we cannot regard them as having been asked in good faith. If they were, his answers completely negative the assumption, and explain the subsequent transactions with the bank as fully as could be expected under the circumstances. In this, as in most other respects, he is supported by the plaintiff Kimball, who testifies positively that no money was borrowed from the bank at that time, nor for a considerable time afterwards. If the money was borrowed elsewhere, it could not have been a secret which was past finding out. The notes taken up were produced with the marks of cancellation upon and we think it was conclusively shown that $600 of Mrs. Goff’s money was appropriated in the manner stated by Mr. Goff.

The next question is, whether it was thus appropriated with the knowledge and consent of the defendant Johnson, and as so much money contributed by him towards discharging the indebtedness of the firm, with the understanding that he was to execute the note and mortgage to secure its repayment to Mrs. Goff. We have no doubt that it was. If there were no other evidence before us but the note and the fact that the $600 was so applied, the testimony of the defendant Johnson alone would convince us that they were executed and delivered to secure the payment of it. He claims that he needed the money in his own private business, and that he executed and delivered the note and mortgage with the expectation that it would be advanced to him for that purpose, which was never done. His relation of the affair is altogether too strange and unaccountable for us to credit. The note and mortgage are dated March 10, 1856. It would appear from this testimony that the negotiation was opened by Goff’s sending the note to him at Manitowoc sometime about the 15th of that month to be executed and returned, saying that Mrs. Goff had the money in the bank, which he could have if he would sign it. Without further examination or inquiry, he signed the note and returned it in a letter. After his return to Kenosha, and on the 3d of April, the mortgage was presented, and he and his wife signed it. At that time also he says Goff told him the money was in the bank. Now the most remarkable feature of his testimony is, if, as he says, he borrowed the money for his individual purposes, that he should not have called for and received it before executing and delivering the note and mortgage. It may not be surprising that he should have signed and returned the note, but it is certainly very extraordinary that he should have executed and delivered the mortgage without demanding the money. Yet if he is to be believed, he did not even ask for it, but contented him-Se^^°^,s statement that it was in tlie bank. Nearly a month bad already elapsed since tbe date of tbe note, and sf¿ll he says be made no inquiries for tbe money until about a month after tbe acknowledgment and delivery of tbe mortgage, and then instead of going to Mrs. Groff or her husband, be called first in tbe latter part of April, upon tbe teller of tbe bank, and subsequently, in May, upon Mr. Kimball, tbe cashier; and it would appear from tbe testimony of the witness Palmer, that be called again upon Mr. Kimball in tbe fore part of June. He was distinctly informed on each of these occasions, that Mrs. Groff had deposited no money there for him, and yet be did not notify her or make any complaint until the November following, when be demanded a return of the note and mortgage. It appears that at that time there bad been a quarrel between him and Groff, and tbe copartnership bad been dissolved. A man who was under tbe necessity of borrowing money at a high rate of interest, and who bad delivered bis securities with tbe expectation of receiving it, would not have conducted himself in this way. He would have resisted tbe outrage by prompt and active measures. A statement so inconsistent and irrational cannot be believed. Tbe defendant’s behavior, according to bis own account of it, is subject to no reasonable explanation except upon tbe supposition that G-off speaks tbe truth. Hence be strengthens rather than weakens Groff’s testimony. Again, if the money had been intended for bis individual use, be could have explained tbe purpose for which it was required. He is entirely silent upon that subject.

Tbe evidence of tbe witnesses Reuben Palmer, Reuben B. Palmer, Shepard Johnson and Lane, doek not affect tbe case. Its leading features are too strongly marked by facts and circumstances about which there could be no dispute, to be overcome and shaken by such testimony. Of such admissions it has been well remarked, that they are “ a species of evidence easy to manufacture, difficult to rebut, often issuing through interested channels, and in tbe most favorable aspect, reflected from tbe memory or inferences of tbe witnesses.” With tbe exception of Lane, who speaks with great doubt and caution, tbe admissions testified to cannot be said to come through disinterested channels. The witnesses are the relatives of the defendant Johnson, and the testimony of his son Shepard Johnson is such on its face as would stagger the belief of any intelligent unprejudiced mind. His statement of the contents of the letter seems, under the circumstances, quite beyond reason and truth.

The only question of law presented is as to the validity of the acknowledgment of the mortgage. It was acknowleged before Mr, G-off, the husband of the mortgagee. We do not think he was on that account disqualified from taking it.

Upon the whole, therefore, we are of opinion that the judgment of the circuit court must be reversed, and the cause remanded with direction that judgment be entered for the plaintiff according to the demand of his complaint.

Ordered accordingly.