Tucker v. Grover, 60 Wis. 233

60 Wis. 233 | Wis. | 1884

TayloR, J.

The learned counsel for the appellant, in a very elaborate argument, attempts to show that the plaintiff cannot maintain his action against the defendant, for the reason that, as he alleges, the evidence proves that the plaintiff committed a fraud upon the owners of the real estate purchased by the defendant, in this, that while he was pretending to act on behalf of the owners of the real estate in making a sale of their lands, he was in fact acting on behalf of himself and the defendant as purchasers. If it be admitted that the plaintiff -was guilty of fraud towards the owners of the lands sold, who have paid him a commission for his pretended assistance in making such sale, we are unable to see how such fraud can justify the defendant in withholding the $1,000 from the plaintiff. It seems clear to us that the defendant, under the proofs and the finding of the jury upon such proofs, stands in the same relation to the plaintiff as though the $1,000 had been first paid to him by the owners of the land in satisfaction of his commission's, and thereupon he had paid the money to the defendant in part payment for his interest in the land under the parol contract. It needs no argument to show that, had the money passed directly from the owners of the land to the plaintiff, in discharge of his claim for commissions, and had he then paid the same money to the defendant on a contract between himself and the defendant, the defendant could not refuse to account with the plaintiff foe it, either as a payment on the contract or upon an implied promise to. return it to the plaintiff if the contract was not carried out, on the ground that the plaintiff had fraudulently obtained it from the owners of the land. The defendant does not stand in the place of the men who paid the money to the plaintiff, and he cannot invoke any rights they might have to the money to defeat the plaintiff from recovering of him upon his contract, so long as such owners make no claim upon the defendant for such money. We know of no law which allows a vendee of personal property to defeat the action of his vendor for the purchase price, by showing, that such vendor possessed himself of such property by a fraud upon his prior vendor, unless such first vendor has asserted his right to the goods in the possession of the second vendee. The right of the first vendor to avoid the sale for fraud is a personal right, and can only be set up by him or those in privity with him. It may be that the original vendors of this land might have compelled the defendant to pay to them the $1,000, which, he had been permitted to retain for the use ' of-the plaintiff, if they had commenced an action for that purpose before he had paid the same to the plaintiff. Nothing of that kind has been done by them in this case, and the defendant is in no position to do it for them. The plaintiff’s right to recover the money, if he have such right, does not depend on any contract between himself and the original land-owners, but upon a contract between himself and the defendant, and such contract is clearly untainted by any alleged fraud of the plaintiff against such owners.

Treating the $1,000 as paid by the plaintiff to the defendant upon the parol contract for the purchase of a quarter interest in the land, such payment was made upon a void contract, and plaintiff was, under the decisions of this court, entitled to recover the same of the defendant, upon demand of payment of the money so paid, though the defendant did not refuse to go on with the contract on his part. Brandeis v. Neustadtl, 13 Wis., 142; Thomas v. Sowards, 25 Wis., 631; Hooker v. Knab, 26 Wis., 511; W. W. U. P. Co. v. Shaw, 31 Wis., 655; Clark v. Davidson, 53 Wis., 317. The learned counsel for the appellant admits this to be the rule established by this court; and upon this part of the case he takes exception only to the sufficiency 'of the demand made by the plaintiff for the repayment of the money before suit brought; and also excepts to the charge of the court upon the question of demand. If the evidence of the plaintiff upon the subject of demand was believed by the jury, there can be no doubt as to its sufficiency. Upon this point the court charged the jury as follows:

“ Where a contract is void b}7 the statute of frauds, and money is paid upon it which the party is entitled to. recover back, he cannot recover it back without making a demand, because otherwise the vendor might not know but the other party was going to take possession and fulfill the contract; but, the contract being void, when the party paying the money goes and demands it, that is notice that he wilLmot perform it, and then if the vendor refuses to pay, a cause of action at once arises to enable him to recover it back, with interest from thé time at seven per cent. If he does not refuse, he is to have a reasonable time to get the money and pay it. What is a reasonable time is a question of fact for you.

“I ought to say this, further, that in making the demand for the money it is not necessary that he should put it on the ground that the contract is void under the statute of frauds, but there must be such a reference to the money when the demand is made that the defendant should understand that it is the money paid on the contract which is void by the statute.”

These instructions, we think, are sufficiently favorable to the defendant, and.state the law correctly.

It is also insisted by the learned counsel for the appellant that the plaintiff ought not to be allowed to recover in this action, because he took from the defendant a written receipt, by the terms of which the defendant was to pay to the plaintiff $1,000 when he should show a road from the pine lands purchased by defendant of Guild, of Wakefield, N. T. to the Wolf river, which road should be on an average from the whole tract of not more than seven miles from the river, and if he did not show a practical road, as described above, then the said $1,000 should belong to defendant. Upon the trial both parties agreed that this receipt was made for the purpose of being used in the negotiations for the purchase of the lands by the defendant, and for the purpose of inducing the owners to allow the plaintiff the $1,000 for his commissions, and that neither party considered it as an agreement by which' either party was to be bound. We do not think this receipt so explained by the parties is any defense to the plaintiff’s action.

The cas.e depends mainly upon questions of fact, which the jury have found against the defendant upon conflicting evidence, and their verdict is necessarily final. The court submitted the case to the jury with instructions to which there are no valid objections. The case seems to have been fairly tried, and we find no error in the record which would justify a reversal.

By the Gourt.— The judgment of the circuit court is affirmed.