65 Wis. 247 | Wis. | 1886
The folloAving opinion was filed December 23, 1885:
This action was brought by the insurance company to recover from the appellant and Swan about $1,000, which the company had paid to them upon a policy of fire insurance issued by said company to Towle & Swan as partners, upon an alleged loss by fire of property covered by said policy. The complaint charges that the payment of the $1,000 was procured by the defendants from the company by making false and fraudulent proofs of loss and by false swearing on the part of the defendants, Towle & Swan, as to the extent of their losses; and that, relying upon such false statements and proofs of loss, and not knowing of their falsity at the time, the plaintiff paid the $1,000 to the defendants ; that afterwards, upon ascertaining the falsity of their statements and proofs of loss, and that they did not in fact sustain the losses claimed by them, and that there was in fact but a very small portion of said $1,000 due to them for losses under said policy, the plaintiff demanded of said defendants the $1,000 so paid to them by reason of said false
After the summons was served, and before any complaint in the action was made or served upon the defendants, or either of them, the plaintiff procured to be made a sufficient affidavit for a writ of attachment against the property of the defendants, and upon such writ the property of the defendant Towle was attached. Towle thereupon, and before the .service of any complaint in the action, gave an undertaking, as authorized by sec. 2742, R. S., conditioned as therein required, and the property attached was released from said attachment.
When the action was called for tidal, and a jury impaneled to try the cause, the defendant Towle moved to dismiss the amended complaint and strike it from the files, for the reason that the action was begun as upon a contract and the amended complaint sounds in tort. This motion was overruled, and defendant excepted. The defendant then objected to the reception of any evidence under the amended complaint, on the ground that it did not state facts sufficient to constitute a cause of action. This objection was also overruled, and defendant excepted. After trial the plaintiff had a verdict in its favor for $1,205.36, upon which judgment was rendered against both defendants. Towle alone appeals from the judgment. The verdict was the amount paid by the company to the defendants
The appellant makes the following assignments of error, upon the argument in this court: “ (1) That the court erred in refusing to dismiss and set aside the amended complaint. (2) In admitting the evidence of Nelson as to Swan’s admissions, made to him after the fire. (3)- In instructing the jury in regard to such admissions. (4) In submitting to the jury, upon all the evidence admitted (including the proof of Swan’s admissions), whether the fire by which the stock of staves was burned was set by the defendants or either of them. (5) In instructing the jury ‘ that the plaintiff has offered some testimony tending to prove that the fire was caused by the act or procurement of the defendants, or one of them,’ referring plainly to the proof of Swan’s admissions to Nelson. (6) In refusing to grant a new trial. (7) Other rulings and decisions set forth in the printed case.”
Under the first assignment of error it is urged by the learned counsel for the appellant that the amended complaint should have been dismissed and set aside for two reasons: First. Because the original complaint in the action, though held insufficient in not stating facts sufficient to constitute a cause of action, was clearly intended to state a cause of action upon an implied assumpsit or contract to return the money fraudulently obtained by the defendants from the plaintiff, and it is alleged that the amended complaint clearly states a cause of action in tort to recover damages for the injury sustained by the plaintiff, by reason of the false and fraudulent representations made by the defendants, and which caused the plaintiff to pay them the sum of §1,000. This objection is based upon the rule laid down by this court in the cases of Supervisors of Kewaunee Co. v. Decker, 34 Wis. 378; Lane v. Cameron, 38 Wis. 603, and many others which might be cited. . We do not think
Second. It is urged that because the plaintiff sued out an attachment in the case, and made an affidavit under the statute stating that the defendants were indebted to the company in the sum of $1,000 upon an implied contract, etc., we ought to construe the complaint first filed as a complaint setting up facts showing an indebtedness upon an implied contract. This consideration should have great weight in determining the real character of the complaint filed, when, upon the facts stated, there is any real doubt as to its character. Judged in the light of that fact, we think the counsel is right in holding that the plaintiff, in the original complaint, intended to allege facts which would show an implied contract on the part of the defendants to pay the company the money they had obtained from it by their false and fraudulent practices; and, testing the amended complaint in like manner, we think that should also be held to be a complaint to recover of the defendants for money had and received by them, which, in law and in equity and good conscience, they had no right to retain, and therefore there was an implied promise to repay it to the plaintiff upon demand. The allegations of fraud, false swearing, and deceit practiced by the defendants, alleged in both complaints, are alleged, not as the cause of action, but for the purpose of showing that the defendants have in their possession a certain sum of money which in law they ought to pay to the plaintiff on demand. After set
Ye think the claim of the learned counsel for the appellant, that the amended complaint must be treated as an action to recover damages for the tortious acts of the defendants, and not an action upon an implied contract on the part of the defendants to pay the money received by them from the plaintiff wrongfully, was decided against them by this court in the ease of Town of Fifield v. Sweeney, 62 Wis. 204. In that case, as one cause of action, the complaint alleged that the defendant furnished teams to work for the town at three dollars per day; that the teams worked in fact 232 days, and “ that the defendant falsety and fraudulently represented, by false statements of account and bills rendered, that his teams had worked in the aggregate 265 days; that he knew such statements to be false, and that he made them for the purpose of deceiving the town officers; that said officers believed such false representations, and by reason thereof paid the defendant for thirty-three days in excess of the - time actually worked by his teams; that town orders were issued for said team work, and paid by the town treasurer before the error was discovered; and that the plaintiff has sustained damages herein in the sum of $99, and interest.” There was also in the complaint in that action an allegation of a demand for the amount of the money fraudulently obtained from the town, and a refusal to pay, before the action was commenced, as in the case at bar. This ca,se is, in all its general features, the same as the one at bar; and it was held that “ the whole complaint goes upon an implied assumpsit to repay the money so had and received, and interest thereon, and no other damage by reason of the fraud or mistake is' claimed. The complaint as for money had and received is
This court has repeatedly held that the plaintiff may waive the tort and recover upon an implied contract, when money or property has been obtained by the defendant from the plaintiff by the tortious acts of the defendant. Norden v. Jones, 33 Wis. 600; Keyes v. M. & St. P. R. Co. 25 Wis. 691; Elliott v. Jackson, 3 Wis. 649, 655; Grannis v. Hooker, 29 Wis. 65; Smith v. Schulenberg, 34 Wis. 41, 50; Wells v. Am. Exp. Co. 49 Wis. 224; Graham v. C., M. & St. P. R. Co. 53 Wis. 473, 481. What was said in the last case cited is not, we think, in conflict with the decision in the case of Town of Fifield v. Sweeney, supra. Each complaint must be judged of upon the exact facts stated in it in order to determine whether it be an action in tort or on contract. And in determining that question, the evident intention of the party in stating his facts must have effect in determining the question when the facts alleged might sustain a cause of action either in tort or on contract. As was said in the Graham Gase: “The original complaint was in tort;. and as the second amended complaint stated facts sufficient in themselves to constitute an action for tort, the court would presume that the pleader intended to go upon the tort as his ground of action, and not upon the implied as-sumpsit. To hold that the amended complaint was intended to be an action of tort would be consistent with the original cause of action stated, and would be a permissible amendment. To hold otherwise would be inconsistent with the original, and not permissible.” So, in the case at bar, the plaintiff having caused an attachment to issue in the action, we must presume that he intended that his complaint should state a cause of action on contract, in order to sustain his proceeding by attachment; and the facts alleged being sufficient to allow him to recover on the implied
Construing tbe amended complaint as one to recover upon an implied contract to repay tbe money wrongfully received from tbe plaintiff, tbe second objection now made, but which was not made on tbe trial,— viz., that the complaint should have been dismissed for tbe reason that it does not state a cause of action which would authorize tbe issuing of an attachment,— would not seem to be well taken, bad it been taken at tbe circuit. If it were admitted that tbe complaint was a complaint to recover damages for a tort, whether a motion to set it aside, because an attachment had been issued in the case, should be granted, or wrhether the only remedy of the defendant in such a case would be to set aside the attachment, is not a question to be determined in this action, as wTe hold that the complaint is not in tort, and because no motion to set it aside on that ground was made in the court below.
The determination of the second, third, fourth, and fifth assignments of error depends upon the question of the admissibility of the admissions of Swan, one of the copart-ners and one of the defendants in the action, in regard to the cause of the fire, as evidence for the plaintiff in an action to recover back the moneys paid to the partnership upon the insurance policy. The record shows that the admissions were made shortly after the fire, and before the dissolution of the partnership. The witness Nelson says: “ I had some talk with Swan about setting the stock on fire, sometime after the fire.” “ What did he say ? ” This was objected to by the defendant, the objection was overruled, and exception taken. The witness answered: “It was sometime after the fire; I could not say how long,— may be a month. "We were at the mill or house. He told me he put that to fire himself, or set that afire. I cannot say how he worded it.”
The fact that Swan had suffered a default in the action, and was apparently hostile to his copartner, Towle, at the time' of the trial, can make no difference as to competency of his admissions as evidence, although it would affect the weight of such admissions as evidence, especially if the admissions were made after the commencement of the hostile
As there was a general verdict only in the'case, we cannot determine whether the jury found in favor of the plaintiff for the whole amount paid by the plaintiff upon the policy, on the ground that the fire which caused the loss was set, or caused to be set, by the defendants themselves, or by one of them, or upon the ground of fraudulent and false proofs of loss in overvaluing the property destroyed by the fire.
Had there been no proof which would have justified the jury in finding that the defendants, or one of them, set fire to the insured property, and so caused the loss, the verdict should have been, not for the whole amount of money paid by the company for the supposed loss, but for so much only as the amount paid exceeded the actual loss sustained by the insured. The action for money had and received is in some sense an equitable action, and the insurance company having voluntarily paid the money on an alleged loss claimed by the defendants, they can only recover back so much as in equity and good conscience they ought not to have paid.
The provisions in the policy in regard to fraudulent overestimates of the loss, or false swearing as to the extent of the loss working a forfeiture of their right to recover anything upon the policy, do not affect the rights of the plaintiff in this action to recover back money paid on the policy, nor enlarge its rights beyond what they would have been had no such provision been found in the policy. Raise swearing and false valuation in proofs of loss might have been a good defense to a recovery upon the policy had the plaintiff refused to pay the loss; but it cannot be made the basis of a right to recover back money already paid upon the policy. The plaintiff’s right to recover depends upon proof establishing the fact that the company has paid more
This action for money had and received to the plaintiffs use is in no way founded upon the contract of insurance, but upon the fact that false and fraudulent representations were made by the defendants in order to induce the plaintiff to pay the same. This was so expressly held in Northwestern Life Ins. Co. v. Elliott, 10 Ins. Law J. 333; S. C. 5 Fed. Rep. 225. In that case the policy upon which the money had been paid was void and illegal under the laws of Oregon. Still the company had paid the loss on the false claim of the death of the party whose life was insured. It was afterwards ascertained that the person whose life was insured was not dead, and the company thereupon brought an action to recover the money paid. It was insisted on the trial that the claim for the money was founded on the void and illegal contract of insurance, and for that reason no recovery could be had. Judge Usadt, in deciding the case, says (5 Eed. Bep. 229, 230): “ True, the plaintiff might, at common law, upon the facts, have maintained assumpsit for money had and received by the defendant to plaintiff’s use; and the law, in the interest of justice, and by way of promoting the remedy, which was in form ex contractu, would have implied a promise on the part of the defendant to pay. But this would not have been a contract arising out of the void and illegal one, nor in any respect in affirmance of its validity, but only an implication or fiction of law that upon the facts — the plaintiff being entitled ex osquo et lono to recover the money which the defendant had wrongfully obtained from it — he promised to repay the same.” Catts v. Phalen, 2 How. 376, holds the same doctrine.
The plaintiff in the case at bar, in order to avail itself of the right to sue out an attachment in this action, elected to
The only case we have found which would seem to question the soundness of the conclusions we have arrived at upon the question of the amount the plaintiff ought to re
The complaint of the plaintiff admits that some of the property burned was covered by the policy, and the proofs show the same fact; so that there was something due the defendants from the plaintiff upon the policy, after the fire took place, unless they wrongfully caused the fire; and in determining the amount the plaintiff ought to recover, the amount of such actual loss should have been considered, if they were entitled to recover at all on the ground of fraudulent representations as to the amount of the actual loss sustained. The learned circuit judge instructed the jury that if - they found from the evidence that the loss of defendants was small, and materially less than the amount of the policies of insurance, and-that the defendants knew that fact when they made their proofs of loss, and intentionally and knowingly stated the amount of the loss to be materially greater than they knew it to be, for the purpose of unjustly procuring from the plaintiff more than the amount of the loss, and the plaintiff paid the loss relying upon such proofs and in ignorance of its falsity, then the jury should find a verdict for the plaintiff for the full sum paid by it, with interest from the date of payment. This instruction was excepted to by the defendant Towle. As stated above, this instruc
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.
A motion for a rehearing was denied February 23, 1886.