85 Wis. 457 | Wis. | 1893
This case has been once before this court upon appeal from a judgment of nonsuit granted upon a former trial. 18 Wis. 351. It was there held that the nonsuit was improperly granted, and that the cause should have gone to the jury. As the plaintiff’s evidence only was before the court upon that appeal, and the facts which that evidence legitimately tended to establish were taken as proven for the purposes of the appeal, much that was said there is inapplicable now, because upon the present trial there was a sharp conflict of evidence upon all the material issues. ■'
The plaintiff sues defendant for one half of the amount realized from propérty seized upon an execution issued upon a judgment owned by defendant. Obviously he must show his right to money so realized by some binding con- . tract made by defendant or by his authority. It is first claimed by plaintiff that the uncohtradicted evidence shows that a contract for an equal division of the proceeds of the sale of the Bessemer stock was made by the parties. We have stated the substance of the evidence quite fully, and it must be sufficient to say here that this contention is not ■supported by the evidence. The writings introduced in evidence do not show it, because, even if Mr. Flanders’ unsigned letter be considered as binding, it does not amount to an acceptance of the plaintiff’s written proposition by reason of the fact that it does not accept the proposition first made in terms, but proposes a material change, namely, the assignment to defendant of a part of plaintiff’s judgment. That there was any oral acceptance of either proposition is flatly denied by the defendant’s attorney who , conducted the negotiations; therefore the question was •' properly for the jury. If there was any agreement it was '■an executory agreement to divide at some time in the future the proceeds of an execution sale. To rise above the level of a mere nudum factum it must be based upon a consid
Plaintiff claims that the evidence is undisputed that he claimed a valid levy, and that hence it was error to submit this question to the jury. It is quite clear that plaintiff claimed' a valid levy up to July 2, 1888, when the sheriff’s sale was about to take place on the Mygatt execution; but after this time the question cannot be said to be entirely clear. In his letter of August 10th Mr. Maxon suggests that a 'proper levy be secured of both TarbeWs and Mygatt’s executions. Mr. Maxon himself testifies that at this time the question of the sufficiency of the first levy was discussed between himself and Mr. Flanders, and that he (Maxon) was not able to fully satisfy himself upon the point. Also that about August 20th he contemplated suing out another execution and levying thereunder, and apparently would have done so had there not been intervening executions on behalf of other creditors in the sheriff’s hands. Mr. Flanders testifies that he told Mr. Maxon several times that in his opinion the levy was invalid, and according to his understanding he (Maxon) substantially came to that conclusion himself; also that the Mygatt execution was never returned at his instance or request, and that he ■ did not know of it until after the sale of October 23d.. Furthermore, it does not appear in any evidence in the-case that the return of the execution was considered or discussed during the negotiations. We think, in this state •
The circuit judge also submitted to the jury the question whether Mr. Flanders had authority to make the alleged contract of compromise. It is claimed by defendant that the uncontradicted evidence shows such authority. There certainly was- evidence from which it might properly have been found that Mr. Flanders had authority from his client, Tarbell, to make the agreement claimed; but there was also evidence to the contrary. Mr. Tarbell says that he told Mr. Flanders that if a proposition was made by Mr. Maxon which he (Flanders) thought was reasonable, “if he would submit it to me, I would state whether I would accept it or not ” Mr. Flanders testified with regard to the unsigned letter that if it was satisfactory to Maxon he would then submit the proposition to Tarbell, and if he got his authority he would make and sign the proposition. We think the evidence called for the submission of the question to the jury. The general authority of an attorney under his retainer in the cause would certainly not authorize him to make an agreement to divide with another the proceeds of an execution sale, especially where, as here, the client resided in the same city with his attorney. Weeks, Attorneys at Law (2d ed.), § 219.
The plaintiff claims that defendant is estopped from denying that there was a valid agreement of compromise or that Mr. Flanders had authority to make such agreement. This claim is founded on one or more conversations which occurred between Mr. Maxon and defendant, Tarbell, personally, at some time previous to the sale. Mr. Maxon claims that in these conversations Tarbell clearly understood that he (Maxon) understood and claimed that an agreement of compromise had been made between himself and Mr. Flanders, and that Mr. Tarbell did not dissent, but kept silent concerning Mr. Flanders’ lack of authority to
. Some exceptions are preserved to the rulings of the court upon evidence. None of these seems to us well taken, and but one requires notice. The defendant introduced evidence, under objection, tending to show that the stock levied on was worth from three to five'cents a share. The defendant had alleged in his answer that there was an agreement made between the parties on the day of and prior to the. sale, by which the value of the stock for the purpose of divisiqn of the proceeds was fixed at five cents per share, and if the same sold for any larger sum- defendant was to account to plaintiff for two and one-half cents a share only. Testimony had already been received tending to prove that such an agreement was made with Mr. Maxon. This was a surprisingly low price, and under the rule laid down in Valley L. Co. v. Smith, 71 Wis. 304, and Bell v. Radford, 72 Wis. 402, evidence showing the value of the stock was admissible as tending to corroborate the defendant’s contention. The only tenable objection to the testimony when offered was that it was out of order, be
By the Court.— Judgment affirmed.