48 Wis. 221 | Wis. | 1880
The evidence, to onr minds, clearly shows that the plaintiff, in consideration of being paid $200 for premiums which he claimed to ha,ve advanced in effecting the insurance upon the mill and machinery of Killips & Sons, agreed to relinquish, and did in fact relinquish, all claim and right to the balance of the insurance money in the hands of the garnishee. The court below so found as a matter of fact, and we think no other conclusion could fairly be deduced from the testimony. The language of the instrument bearing date September 27, 1878, is very plain and explicit,- showing that such was the understanding of the parties at the time of its execution. Indeed, it would be difficult more clearly to express that intention than it is expressed in this writing, when considered in connection with the other testimony. The agreement was in the nature of an adjustment or compromise of a doubtful claim preferred by'ihe plaintiff; and for a valuable consideration he agreed to relinquish all claim upon the insurance money except that for the loss of the property covered by his chattel mortgage. Having made that agreement, having relinquished a doubtful claim to the whole fund in the hands of the garnishee, for a certain snm paid him, it is difficult to perceive any valid reason why he should not stand by his agreement. It is said by his counsel that he did not know, at the time, what was the real consideration for the assignment made by the Killipses of their interest in the insurance money to the garnishee. But he certainly had ample notice that whatever interest these parties had in that fund had been assigned to Mr. Burnell; and the evidence satisfactorily proves that the plaintiff treated with Mr. Bv/r-
. There is not the slightest pretense for claiming, as we think, that there was any fraud or imposition in the transaction. Suppose the assignment was made by the Ellipses with a fraudulent intent to place the fund beyond the reach of their creditors — an inference which the evidence scarcely warrants: yet the plaintiff saw fit to abandon and relinquish all claim upon it, to let the assignment stand, in consideration of $200. And as there is no sufficient evidence that the agreement was procured by fraud, or that any improper means were used to secure its execution by the plaintiff, it seems to us it should be enforced according to the intention of the parties at the time it was made. It was argued by the learned counsel for the plaintiff, that the agreement in fact had no reference whatever to the money in the hands of the garnishee; that it related solely to another matter, namely, the abandonment by the plaintiff of an unfounded claim, he had made to the whole insurance, based upon an erroneous construction of the policies. But we are unable to adopt that view as to the intent of the parties, or the effect of the agreement, more especially when the instrument is read in the light which the other testimony throws upon it. The plaintiff himself admits that before he executed the agreement he was informed at the Beckwith House, by the adjuster, that Burnell claimed the interest of the Ellipses in the insurance money, under an assignment from them, and IhsA, Burnell was present asserting his claim.
It was doubtless in view of that claim, and in consideration of the $200 paid, that the plaintiff thought best to execute the agreement, for the very natural reason that it was for his interest to take that sum rather than run the risk of losing all. At all events, the fact is indisputable, that by the arrangement made the plaintiff obtained $200, which he retains; and, having secured this advantage, it would not seem to be in
These views are decisive of the case.
By the Court.— The judgment of the circuit court is affirmed.