Menz v. Beebe

102 Wis. 342 | Wis. | 1899

Lead Opinion

The following opinion was filed December 16, 1898:

Marshall, J.

There is no question of law presented for consideration in this case. No claim is made but that the findings of fact support the conclusions of law, and, in the main, that the conclusions of law support the judgment, the only contention as regards the last proposition being that some errors were made in the accounting between appellant and plaintiff, and that costs should not have been awarded to Bohn against appellant. From this statement of the situation it will be seen that the burden of appellant’s argument is to show that the trial court should have found differently on the facts, and to that end the learned counsel for appellant have, at great labor, prepared and presented here a printed book of 824 pages, which has been examined with all the care that should be bestowed upon the case in order to properly review so much material and determine where the truth lies, without being able to discover with clearness wherein the learned trial court erred as to the facts.

It should not be forgotten that this court does not try causes de novo in the strict sense of the term, even where they were tried below without a jury; that the evidence is not examined and weighed with the degree of exactness required in-trying a case originally. While it is true that on an appeal in an equity case, or one tried by the court without a jury, the evidence is to be examined and weighed, where errors are properly assigned on proper exceptions, at the same time error is presumed against, and the findings cannot be disturbed unless clearly against the preponderance of the evidence. Stanhilber v. Graves, 97 Wis. 515; Clausen v. Hale, 96 Wis. 100; Momsen v. Plankinton, 96 Wis. 166; Magee v. Miss. R. L. Co. 95 Wis. 377. It seems a work of supererogation to call attention to a rule that has so long been given the significance that attends its reiteration in opinions filed at nearly every sitting of the court for many years. We repeat what was said quite recently, such, rule does not appear to be appreciated by many even who are learned and worthily eminent in their profession. That great earnestness to serve clients, and long-continued mental effort to see a proposition in a particular way, should bias the mind and render difficult the duty of facing the record as it is and seeing things from the standpoint of impartiality necessary to determine with some degree of certainty the probable result of subjecting the record to the test of impartial judicial examination under the rules governing it in an appellate court, is most natural. To do that it must not be lost sight of that there is a wide range between clear preponderance of evidence on one side of a controversy and preponderance on the other; that it is so wide that when all fair doubts are resolved in favor of the facts as determined by the trial court, necessarily the cases are few where this court can properly disturb such determination.

We do not deem it advisable to quote here the evidence from the record which influences us to the conclusion we have reached. It is very voluminous. We could not quote from it at all with any satisfaction without greatly burdening the opinion with matter that would be of no benefit in future cases. To our minds the evidence is ample to sustain the decision of the learned circuit court, that plaintiff was a weak, simple-minded man; that Beebe was right the reverse ; that he secured the confidence of plaintiff and falsely represented the Tennessee land both as to character and value in order to secure therefor, from plaintiff, some over $3,000 in value of property,'for property worth between $800 and $900; that the scheme, without fault on plaintiff’s part, succeeded, and that plaintiff commenced this action to avoid the transaction within a very short time after he comprehended the fraud that had been perpetrated upon him. The case is complete on the facts found, and the evidence to sustain such facts appears to be very strong and convincing.

It is contended that the relief granted is excessive, but the reason assigned for such contention shows, as the fact is, that the decree only required the appellant to restore what he obtained from plaintiff so far as it was in his power to clo so, and to respond in money for such portion of the property obtained from plaintiff as he was unable to restore. The title to the Sun Prairie farm was revested in plaintiff subject to the contract with Bohn, and appellant was required to pay to plaintiff the sums he had received on such contract with interest. He was also required to restore the personal property by paying to plaintiff the value of it at the time the trade was made, less the $200 plaintiff then received, with interest. No account was made of interest and taxes paid by Beebe on the one side, or the use of the Dane county land on the other, which fairly offset each other. That appears to be in exact accordance with the repeated decisions of this court heretofore made, as is well said by counsel for respondent. Cole v. Getzinger, 96 Wis. 559; Swihart v. Harless, 93 Wis. 211; Porter v. Beattie, 88 Wis. 22. The rule is elementary that a court of equity, having jurisdiction to rescind a sale of property on the ground of fraud, and to restore the parties to their former situation, may, where such restitution cannot be accomplished by reason of the defendant’s conduct, so shape the decree as to require him to make compensation in money in lieu thereof, and that compensation may reach so far as to include the value of all pi-operty that cannot be restored, or that which the wrongdoer may have received therefor, with interest. If it appears that he received more for the property than it was worth when obtained by him from the injured party, the whole amount must yet be considered as belonging to the injured party. The wrongdoer cannot rightfully obtain any benefit from his wrongful conduct. Milwaukee Co. v. Hackett, 21 Wis. 613.

The transaction in this case having been rescinded, the wrongdoer immediately became a trustee for plaintiff of all of the property the latter conveyed to the former, and liable to account therefor in specie so far as possible, and for the proceeds of such as had been disposed of in the meantime, or the reasonable value of such property if placed beyond the reach for less than its fair market value. And in addition interest may properly be added. The judgment in this case was framed on the lines, indicated, and is right, tested by principles so well established as not to require extended discussion to show either their existence or their applicability to the facts.

On the subject of whether the trial court was right in rendering judgment for costs against appellant in favor of Bohn, the former must prevail. True, costs may be allowed in a case like this in the discretion of the court (Stats. 1898, sec. 2918), but, as said in Spengler v. Hahn, 95 Wis. 472, the discretion mentioned means something more than mere arbitrary judicial will. In some way it must appear that the person awarded costs has been called into court, or put to expense, or prejudiced in the action by the act of another against whom the costs are awarded, else there is nothing for the discretionary power of the court to act upon in saying that such other shall thus respond to such person. Appellant did not cite Bohn to appear in court or make any claim in the action adverse to him. On the contrary, the position of one was identical with that of the other so far as Boltov's rights were concerned. It was plaintiff who cited Bohn to appear, and on a charge that he was a participant in Beebes fraud. That Bohn denied. The charge made by plaintiff and the denial by Bohn was the issue for trial between them. On that issue Bohn prevailed, and he was clearly entitled to costs against plaintiff as a result, not against Beebe.

The result of the foregoing is that appellant must' prevail as to defendant Bohn, but not otherwise. The charge for printing justly chargeable to that branch of the appeal, and recoverable by appellant against Bohn in this court, is fixed at $15. The judgment appealed from as to Menz is affirmed. but as to costs in favor of Bohn it is reversed. Pull costs are allowed to respondent Menz against appellant, and the latter is allowed attorney’s fees and $15 for printing against respondent Bohn.

By the Cowrt.— So ordered.

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Rehearing

Upon a motion by the appellant for a rehearing there was a brief for the appellant by G. 8. Mwrtin and Bushnell & Mall, and a brief for the respondent Menz by Mylrea <& Bird, counsel.

The following opinion was filed March 11, 1899:

Marshall, J.

A motion for a rehearing, made by counsel for appellant, has been considered with the following result:

The trial court charged 'Beebe with $1,093.55 for personal property obtained by him from respondent, and sums of principal and interest received on the Bohn contract, mating in all $2,253.55, and deducted therefrom $200 paid by Beebe to respondent at the time of the trade, leaving a balance due the latter on the accounting, of $2,053.55. On that, the court said interest should be computed in respondent’s favor at the rate of six per cent, per annum as follows: On $1,093.55 from October 5, 1893; on $500 from October 8, 1894; on $330 from October 8, 1895; and on $330 from October 8, 1896. The several items aggregated $2,253.55. The court evidently forgot to deduct the $200 from the $1,093.55, which resulted in wrongfully charging Beebe with interest on $200 from October 5, 1893, to the date of the judgment, the error being $50.36. That error would have been corrected by the trial court if attention had been called to it. No appeal for that purpose was necessary. The subject not having been called to the attention of the lower court before the appeal was taken, but raised for the first time, as it appears, in this court, it cannot count in appellant’s favor sufficiently to entitle him to costs. Windross v. McKillop, 98 Wis. 525. A reversal is not necessary to correct that error now. The judgment here may be modified to the extent of $50.36, and affirmed as modified, under the express language of sec. 3071, Stats. 1898. In making the suggestion in Windross v. McKillop, that a reversal is necessary in such a case, referring to Supreme Court Rule XXXII, we all overlooked the fact that such rule, as indicated by the decisions cited .thereto, applies only to cases where a new trial below, or some proceedings there, are necessary. The error in the interest was not specifically excepted to, nor was error clearly assigned therefor, nor was any mention of it made in the original brief filed by appellant’s counsel. It was mentioned in the reply brief, but in taking up and considering, point by point, the errors insisted upon in the principal argument, it was not reached.

It is urged upon us a second time that in the accounting appellant was wrongfully charged with the whole amount of interest received by him on the Bohn contract, when the charge, equitably, should have been reduced by the amount paid for interest on the $3,000 mortgage, which really represented the incumbrance on the property when Beebe obtained it from Menz. What was said in the former opinion as to the use of the property offsetting interest, had no reference to this, but to what occurred before the making of the Bohn contract. But there is no evidence in the record that Beebe paid any interest on the $3,000 after the date of the Bohn contract. If appellant had produced such proof, doubtless the credit would have been given. The attitude of counsel, it would seem, upon discovering the difficulty, should have been that of a suppliant for the favor of the court, to be allowed to remedy the mistake.in failing to make proof of payment of the. interest, not that of a de-mandant for the correction of an error in that the court below did not grant the credit to the appellant without any proof to base such credit upon. We cannot disturb the judgment for error in not allowing appellant credit for interest, which, for anght that appears by the record, has not been paid.

The result is that the judgment and mandate heretofore entered in this court must be modified so as to read as follows : The judgment appealed from is modified by deducting therefrom $50.36, and is affirmed as modified. No change will be made in the judgment for costs heretofore taxed in this court, and no costs will be allowed on the motion for a rehearing, which motion must be denied.

By the Court.— It is so ordered.