Platt v. Schmitt

117 Wis. 489 | Wis. | 1903

Cassoday, C. J.

The questions involved are mostly matters of fact. To the several findings of the court there are few exceptions. There is no dispute but that the mortgage was given-by Peter Schmitt and wife, March 28, 1894, to secure six notes, five of which were for $500 each, and one for $4,000, and each with interest at five per cent, per annum. The complaint erroneously alleges that the several notes were signed by Mrs. Schmitt, as well as her husband, and also as to the respective dates at which the several notes became due and payable, as appears from the third finding, to which no exception is taken. There is no dispute as to the $4,000 note. It is conceded that the note of $500 which became due and payable February 13, 1895, was paid by Peter Schmitt and taken up during his lifetime. So it is conceded that the defendant Mrs. Schmitt paid and took up two of the $500 notes which became due and payable, respectively, February 13, 1898, and February 13, 1899. The real controversy is whether the two $500 notes which became due and payable, respectively, February 13, 1896, and February 13, 1891, were paid during the lifetime of J. J. Williams, as found by the trial court. The claim is that such payment was in fact made to one Rambusch with the consent, acquiescence, and authority of Mr. Williams. As bearing upon the question, it should be observed that on the same day of the execution of the several notes and mortgage, March 28, 1894, they were all transferred by an assignment made by Bernard Hauser, to whom they were made payable, to J. J. Williams; that Peter Schmitt died September 12, 1895, leaving the defendant, his widow, and their children, him surviving; that Rambusch committed suicide October 20, 1896; that «T. J. Williams died testate December 20, 1896; that his will was admitted to probate January 26, 1897; that his widow, Lurenza J. Williams, was named therein as executrix and residuary legatee; and she thereupon qualified as such executrix; that Mrs. Williams died testate November 29, 1899, and her will was admitted to probate January 2, 1900, with- E. L. Hall named therein as executor, who was duly appointed as such executor and qualified; that February 19, 1900, Hall, as such executor, assigned the $4,000 note and mortgage to the plaintiff, a son of Mrs. Williams by a former husband, and that such assignment also purported to transfer to the plaintiff tbe two $500 notes wbicb became due and payable, respectively, February 13, 1896, and February 13, 1897. It is a significant fact that tbe $500 note due and payable February 13, 1895, was actually paid to Eambuscb, September 13, 1894, and taken up and marked “Paid,” with a receipt attached, of wbicb tbe following is a copy:

“Juneau, Wis., September 13, 1894.

“Eeceived of Peter Schmitt, $515.07, payment of note of five hundred dollars and interest thereon from February 13th, 1894. W. T. Eambusch, per Chas. Hawks.”

That pretty clearly shows that in that transaction Eam-buscb. acted as tbe agent of J. J. Williams in receiving the $515.07, and delivering up tbe note to Peter Scbmitt. So it appears that less than three months afterwards, and on Pe-cember 4, 1894, Peter Scbmitt paid to Eambusch $300 interr est to March 28, 1895, on notes, and took bis receipt therefor; that October 9, 1895, tbe defendant, Mrs. Schmitt, paid to Eambuscb $512.50 to apply on mortgage “and interest on said $500” to date, and took bis receipt therefor; that December 3, 1895, tbe defendant, Mrs. Schmitt, paid to Eambusch, “$775, being interest in full on $5,500 to March 28, 1896, and $500 to apply on principal, leaving a balance due of-principal of $5,000,” and took bis receipt therefor. As indicated, all of those payments were so made to Eambuscb during the life of Mr. Williams, and while be was tbe owner of all tbe notes and mortgage. Eambuscb was present when tbe mortgage was executed, and took tbe acknowledgment. Moreover, it appears that tbe $500 note due February 13, 1895, remained in tbe possession of Eambuscb until it was paid and taken up, September 13, 1894. Upon tbe death of Mr. Williams, December 20, 1896, and tbe probate of bis will, all of tbe notes and tbe mortgage became tbe property of Mrs. Williams. As found by the trial court, February 10, 1897, tbe defendant, Mrs. Schmitt, paid to Mrs. Williams, “$250 in full for interest on $5,000 to March 28, 1897,” and took her receipt therefor as executrix, stating the faqt. This is consistent only on the theory that the several payments so made to Rambusch were in full payment and satisfaction of the three $500 notes, which became due, respectively, February 13, 1895, February 13, 1896, and February 13, 1897, and the interest on the other notes to March 28, 1896. So the payment to Mrs. Williams by Mrs. Schmitt of $750, being interest in full for one year on $4,000, and note of $500 due February 13, 1899,” and taking a receipt therefor, stating the fact, is consistent only upon the same theory. Thus it appears that Mr. Williams had been the owner of all six notes and mortgage for nearly three years when he died; and hence he must have known that during that period one of the notes and the annual instalment of interest on all the other notes became due and payable in the winter of 1895, and that another of the notes and the annual instalment of interest on all the other unpaid notes became due in the winter of 1896. And yet it does not appear that during that time Mr. Williams made any claim to Mr. or Mrs. Schmitt that either of such notes, or any instalment of interest on the notes, or any of them, had not been paid. A fair inference is that he knew that such payments had been made, and acquiesced therein. And so the court found that neither Mr. Williams nor Mrs. Williams, during their respective lives, “made any claim upon the two $500 notes so maturing February 13, 1896, and February 13, 1897, after their payment as above stated, but, on the contrary, both of them treated and recognized them as paid.” This finding is amply supported by competent evidence, and the same is true of the other findings in the case. Of course, if Mr. and Mrs. Williams were bound by the payments so made to Rambusch, then the plaintiff, who claims by assignment from the executor of Mrs. Williams’s estate, several years after the maturity of the notes, is equally bound by such payments. It sufficiently appears that Mrs. Williams had knowledge of such payments to Rambusch when she gave the receipts mentioned, and it may fairly be inferred that Mr. Williams, who lived two months after Rambusch committed suicide, had knowledge of such payments, and acquiesced therein. Such facts bring the case within the well-recognized principle of ratification, Ladd v. Hildebrant, 27 Wis. 135; Phillips v. McGrath, 62 Wis. 124, 22 N.W. 169. Thus it was said by Mr. Justice Field:

“The ratification operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification. The retroactive efficacy of the ratification is subject to this qualification. The intervening rights of third persons cannot be’defeated by the ratification.” Cook v. Tullis, 18 Wall. 338.

That was quoted approvingly by Cole, C. J., in Galloway v. Hamilton, 68 Wis. 656, 32 N. W. 636. We must hold that the payments made to Rambusch were -ratified by Mr. and Mrs. Williams, and that the plaintiff is bound by such ratification. The case is distinguishable from Bartel v. Brown, 104 Wis. 493, 80 N. W. 801, and Spence v. Pieper, 107 Wis. 453, 83 N. W. 660.

By the Gourt. — The judgment of the county court of Dodge county is affirmed.