La Fayette County Monument Corp. v. Magoon

73 Wis. 627 | Wis. | 1889

Lyon, J.

1. We cannot doubt that the transactions between the parties of April 6, 1887, evidenced by the communication of the defendant to the plaintiff corporation, and the receipt which was approved and accepted by the defendant (both of which will be found in the foregoing statement of facts), show conclusively that the check in suit was given and received as a payment of the defendant’s subscription to the monument fund. The language of the defendant to the plaintiff in such communication is: “I, Henry S. Magoon, . . . hereby subscribe and hand to the treasurer of said corporation one thousand dollars in money to be used,” etc., and that of the receipt is: “Received from Henry S. Magoon the sum of one thousand dollars according to the foregoing letter,” etc. It is therefore a receipt for $1,000 in money. Ye cannot conceive how the parties could have expressed in stronger terms their intention that the check was given and received as money, and hence that it paid the defendant’s subscription as effectually as though the payment had actually been made in cash. Had the plaintiff brought an action upon the subscription instead of the check, we think a defense that the subscription had been paid would be proved by the transactions of April 6, 1887. Possibly this view of the case removes from it the question whether there was a valid consideration for the subscription, but it is deemed proper to determine that question.

2. The communication of January 8, 1885, addressed by the defendant to the board of supervisors of La Fayette county, was a conditional subscription to the monument fund. The county performed all the conditions prescribed therein by the defendant within the required time. The defendant not having withdrawn his proposition to the county, his subscription thereupon became absolute. The raising of the $2,000 by the county by tax, and the payment thereof to the plaintiff corporation, is a good consideration for the defendant’s subscription. This has been held in numerous cases in this court and elsewhere, and really is elementary doctrine. In Lathrop v. Knapp, 27 Wis. 214, the prevailing opinion by Djcxou, C. J., goes further, and asserts the rule to be that where several persons mutually promise to contribute to a common object, the promise of each is a good consideration for the promise of each of the others. The present chief justice filed an opinion holding the above rule too broad. He said, however, “ I concede that the doctrine is well established that where such advances have been made or expenses and liabilities incurred by others, upon the credit of such a subscription, before any notice of withdrawal, then it becomes obligatory and binding upon the promisor, although he may not have derived any pecuniary advantage from the enterprise.” The subscription of the defendant in the present case is within the qualified rule laid down in the latter opinion. The subject is so fully discussed in both opinions in Lathrop v. Knapp that further consideration of it here is uncalled for. It must be held that the defendant’s subscription, as well as the check in suit, is supported by a valid consideration.

3. The testimony offered by defendant to prove the agreement to accept a bond in place of the check in suit and to surrender the check, also to prove a tender of the bond and demand of the check by defendant, as alleged in the answer, was properly rejected. There is no claim of any fraud or mistake in the written instruments which evidence the contract of the parties of April 6, 1887, and hence parol proof is not admissible to vary or add to the contract thus expressed in writing. This has been so frequently and so uniformly held by this court, and is so thoroughly well settled, that it is quite unnecessary to. cite adjudications upon the subject.

4 The failure to raise $6,000 for the monument fund by March 1, 1888 (if such failure has occurred), is not a defense to this action, although had the action been pending after that date such failure might, perhaps, have been interposed by leave of court, as a counterclaim arising puis darrein continuance, provided the stipulation between the parties in that behalf is valid and binding upon the plaintiff— a proposition not here determined. On the hypothesis that it is a valid condition, it need only be said of it, that-it is in the nature of a condition subsequent, which could not have been broken until long after the check became payable by its terms, and after judgment actually recovered upon it. Until such breach the right of action upon the check was as complete and perfect as though no such condition existed. Thus, in ejectment by a grantee of land who holds his title upon condition subsequent, against his grantor who, before breach of the condition, has evicted him, the unbroken condition subsequent is not available to the defendant either as a defense or in abatement of the action. All the defendant stipulated for was that in case of a breach of the condition the same sum should be refunded to him — not the same monej'’ or the same check. Hence the law of bailments, invoked by the defendant, has no application to the case.

It is believed that the foregoing views cover the whole casé, and that they necessarily result in an affirmance of the judgment.

5. It has already been suggested that if the condition contained in the contract between the parties of April 6, 1887, is valid, and if there has been a breach thereof, the defendant can recover of the plaintiff, in any proper action or proceeding, the amount paid upon his subscription. In such case, the judgment herein not having been paid, it would be against equity and good conscience to require the defendant to pay it. Under the old practice, he could probably be relieved of the judgment by a suit in equity to restrain its collection. But if entitled to relief, the present practice gives him a simpler and more summary remedy, that is, by a motion to the circuit court, upon a proper showing, to discharge the judgment. If such a motion be made after the cause shall have been remitted to that court, and the defendant can satisfy the court that such condition is a valid and binding one upon the plaintiff, and that it has been broken, and the defendant shall pay the costs of this action, we think the motion should be granted. If the circuit court should be of the opinion that the condition is invalid because not a part of the original subscription, and because the county of La Fayette is not a party thereto, or for any other reason, the motion will necessarily be denied. Ve leave the circuit court to pass upon the question above suggested, without intimating any opinion as to how it should be determined.

Since the argument of the appeal, and since the foregoing opinion was prepared, the members of this court have learned with profound, regret that the able and scholarly defendant who had long been an honored and prominent member of the bar of this court, has departed this life. It is necessary, however, in order to facilitate the settlement of his estate, that judgment should be entered upon this appeal.

By the Court.— The judgment of the circuit court is therefore affirmed as of February 19,1889, that being the day on which the cause was argued in this court.