43 Wis. 332 | Wis. | 1877
OPINION ON FIRST APPEAL.
This case has been once before this court, and will be found in 40 Wis., 424. It was then decided that an action for a wrongful conversion of the policy could be maintained, Mr. Justice Lyon remarking in the opinion, that if the defendants “ surrendered the policy for cancellation to the company which issued it, and the same was in law canceled, that is a conversion, no matter what they received in return for it.” On the second trial there was a special verdict. The plaintiff moved for judgment on the special verdict, which motion was denied by the county court, and from that order this appeal was brought. The question presented therefore is, whether, upon the facts found, the plaintiff was entitled to judgment for any amount. No other question need be considered, it being conceded that the complaint is sufficient to sustain any judgment to which the plaintiff is entitled.
The jury found that the plaintiff executed and delivered to the deceased, H. L. Page, the two notes read in evidence, and, as collateral security, executed and delivered to said Page the assignment of the policy and the policy itself; that these papers came to the hands of the defendants as part of the assets of the estate of Page; that the defendants sent the policy to the local agent in Milwaukee to be forwarded to the home office for a full paid up policy; that the home office returned in lieu of this policy one for $6,566 and odd cents; that the defendants afterwards returned to the home office this last policy,
Upon these facts the question arises, whether there was not a surrender and cancellation of the policy; in other words, whether there was not a wrongful conversion of it by the defendants. It seems to us plain that there was. The policy was surely surrendered to the company by the defendants having the possession and the legal title to it, and it was canceled or annulled by the company. The policy as a binding contract was extinguished, so far as it was within the power of the parties to extinguish it. The jury found that there was no mistake in sending the policy to the home office to be canceled; and we must presume that the parties intended to do in respect to it what they did. We are at a loss, then, to understand upon what ground it can be claimed that these acts of surrender and cancellation did not affect the policy, but that it continued in force as a contract.
But the learned counsel for the defendant insists that there was no conversion of the policy, if there was no legál cancellation of it; and he says there could not be a legal cancellation of the interest of the plaintiff in it without his consent. This argument is unsound in the view in which it is pressed. It may be that the surrender and cancellation of the policy was wrongful, in violation of the rights of the plaintiff. Indeed, he claims that it was, and has brought this action for the damages he sustained by these unlawful acts. But can it with any reason be said that the validity of the policy was unaffected by the surrender and cancellation — that it continued in force? By the assignment, the plaintiff set over to Page-all his “ right, title and interest in and to the policy,” to hold, as security for the payment of the debts mentioned. He-transferred the policy to Page, clothing him with the legal
It is further claimed that the action cannot be maintained, unless the plaintiff first pay, or make a tender of, the amount due on the notes. But if the defendants have wrongfully converted the policy, presumably they have in their possession its market value in cash or its equivalent, more than sufficient to satisfy the debt. Under these circumstances no tender was necessary.
This brings us to the question as to the amount the plaintiff was entitled to recover on the special verdict. It appears from the verdict that the amount due on the notes, with interest, January 5, 1877, was $2,820.67; that the market value of the policy was $4,908; and that the plaintiff has sustained special damages by reason of the conversion, of $150. We think the plaintiff is entitled to judgment on the special verdict for the difference between the amount of his special damages increased by the market value of the policy, as found by the jury, and the amount due on the notes. This is all the real damage he has sustained by the wrongful act of the defendants.
It was argued by the learned counsel for the plaintiff, that judgment should be rendered for the market value of the policy without reference to the debt. But we are unable to see any reason or principle of law which entitles the plaintiff to such a judgment. Tie surely had no right to the policy, or its proceeds, without paying the notes for which it was pledged. The surrender and cancellation of the policy being wrongful, the plaintiff is entitled to compensation only to the extent of his injury. This proposition would seem very plain. See Halliday v. Holgate, L. R., 3 Ex., 299; Fisher v. Brown, 104 Mass., 259. The motion for judgment upon the special
By the Court.—The order of the county court is reversed, and the cause remanded for further proceedings in accordance with this opinion.
OPINION ON SECOND APPEAL.
In this case an order was entered subsequent to the one we have been considering, giving the defendants leave to return the original policy to the plaintiff upon his paying the amount due on the notes less the sum of $150 special damages. An appeal was taken from that order by the plaintiff, and, by stipulation, both appeals were heard together. The views which we have expressed on the above appeal are decisive of the second appeal. If it was competent for the county court in a proper case to order a return of the property in mitigation of damages, for obvious reasons it should not be done here, where there has been a surrender and cancellation of the policy. Whether the policy has any validity whatever as a contract, is a question which can only be determined in an action to which the company is a party. The case of R. & W. R. R. Co. v. Bank of Middleburry, 32 Vt., 639, is not in point. Nothing had been done there by the pledgee affecting the validity of the bonds pledged, and it might have been a proper exercise of power to permit the return of the bonds in mitigation of damages. But the cases are not analogous in their circumstances, and the rule applied in the one should not be followed in the other.
By the Court. — The order of the county court is reversed, and the cause remanded.
On a motion by the respondents for a rehearing, their counsel contended, 1. That the court below did not err in denying plaintiff’s motion for judgment on the special verdict, if that verdict was unsupported by the evidence, since in that case
We differ very widely from the learned counsel for the defendants as to the questions arising on this appeal which can be considered. And it seems necessary to remind him that this is not an appeal from an order denying a motion to set aside the verdict and grant a new trial on the ground that the special finding “ is plainly, directly and palpably contrary to and against the evidence ” in the cause. If the appeal were from such an order, much of the elaborate argument filed in support of the motion for a rehearing would be pertinent, because the court could then look into the bill of exceptions to see if the special verdict was warranted or supported by the evidence. But this is an appeal from an order denying the plaintiff’s motion for judgment on the special verdict. Now, what question is raised on an appeal from such an order? Manifestly nothing more than this: Was the plaintiff, upon the facts found in the special verdict, entitled to judgment for any amount, and, if so, for how much? It is plain
Then, does the special verdict show a conversion of the original policy by the defendants? We are quite clear that it does, and have so held. It is not necessary to go over the argument on that point, but we will remark that the finding shows that the original policy was surrendered by the defendants, who had the legal title, and was canceled by the company. It is true, the jury find that the original policy does not bear upon its face any evidence that it was canceled; that is, the word “ canceled ” is not written on the face of the policy. But nevertheless the finding does show that the policy was in fact canceled; in other words, it was extinguished and destroyed as a contract. If this does not show a conversion of the instrument, it would be difficult to say what would consti
But the counsel claims that the original policy was surrendered and canceled by mistake. The jury, however, find that it was not sent to the home office by mistake, thus negativing this position.
Without dwelling longer upon the case, we think the motion for a rehearing must be denied.
By the Court. — Motion denied.