78 Wis. 351 | Wis. | 1890
The only facts necessary, to an understanding of this case are as follows: The defendant, by Ms attorney, J. G. Flanders, Esq., on the 4th day of May, 1888, caused an execution to be issued on a judgment of nearly $32,000 in his favor and against one John E. Burton, and to be placed in the hands of the sheriff of Milwaukee county. The plaintiff, by Glenway Maxon, Esq., his attorney, caused an execution to be issued and placed in the hands of said sheriff, on a judgment in his favor and against said Burton, of nearly $12,000, on the 10th day of May, 1888. The said sheriff first attempted to levy the execution of the plaintiff on certain shares of stock of the Bessemer Consolidated Iron Company, held and owned by the said Burton, and the plaintiff claimed, and still claims, that such levy was actually and legally made. The sale of it was duly advertised by said sheriff, and on a certain day thereafter it was by him offpred for sale, when the defendant together with his said attorney appeared and forbade such sale, claiming that he was entitled to the first levy on said stock, by reason of the priority of time his execution came into the hands of said sheriff. Thereupon said sale was postponed, and the said execution was afterwards returned unsatisfied. In the mean time, the defendant caused the said sheriff to levy on the said stock by virtue of his said execution. Bóth parties claimed priority over each other in the levy of their said executions, and so the matter stood when the plaintiff and defendant compromised these conflicting claims by and through their said attorneys, and it was agreed and understood by them that the defendant should cause another execution to be issued on his said judgment, and to be levied on said stock, and that the same be sold thereon, and
These are the material facts proved, discarding any unimportant particulars. A nonsuit was granted on the motion of the defendant for the reasons (1) that there was no consideration shown for the alleged contract; (2) that the authority of Mr. Flanders to make the contract was not proved. The counsel of the defendant stated one other ground of the motion, and that was that the contract was void by the statute of frauds because not in writing. The same grounds are here urged by the learned counsel of the respondent for the affirmance of the judgment.
1. The contract was not a sale. It was a compromise of the conflicting claims of the parties in respect to their priority of levy on the stock, and so it was unquestionably understood by the attorneys of the parties who made it. The contract, therefore, need not have been in writing.
2. There was sufficient consideration of the contract by the plaintiff’s yielding and surrendering his prior levy and lien on the stock. He had used great diligence in finding out what stock the said Burton held in said company, and had procured the proper certificate of the officer of the corporation having the custody of the books and papers, then out of the state, and the sheriff had actually levied on the stock, and so entered it on his execution. The learned counsel of the appellant claims that the defendant would not have known that said stock of the said Burton could
3. It would seem that there was testimony sufficient to show the authority of Mr. Flanders, as the attorney of the defendant, to make the contract on his part. He was present with his attorney when he forbade the sale on the plaintiff’s execution. Mr. Flanders was his counsel to advise him in respect to these conflicting claims of levy. He must have known that the plaintiff had a lien by his prior levy on the stock, and had surrendered it, and he must have known the reason why this was done. The contract was of great advantage to him. These circumstances tend to show the special authority of the attorney to make the contract, or the ratification of it by the defendant, and they should have been passed upon by the jury. The defendant has availed himself of the advantages of this contract, either with full knowledge of how it was made, or else has failed to inquire that he might know, and in either case he authorized or ratified the contract made by his agent. He is presumed to know that the plaintiff had an interest in the property and that he had surrendered it, and he either knew why this was done or he failed to inquire as to the reason why, as would seem to have been reasonable and his duty to do. These circumstances are evidence of ratifica
The circuit court improperly took the case from the jury and granted a nonsuit.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.