Whitman v. Lake

32 Wis. 189 | Wis. | 1873

Oole, J.

Counsel on the argument discussed quite fully various questions arising upon tbe statute of uses and trusts, and tbe statute of frauds; but, as we understand tbe case, those statutes have really no application to it. For, as it is so clearly and well stated in tbe opinion of the learned circuit judge, tbe action is substantially one to recover money paid by tbe plaintiff to tbe defendant’s use and at tbe defendant’s request, and is not founded upon any trust in lands; nor does it in any manner involve any question under tbe statute of frauds. Tbe evidence offered on the part of the plaintiff tended to establish such a cause of action, and that tbe plaintiff paid Hudd & Wigman $100 on tbe 8th of May, 1866, on a land purchase for the use and at the request of tbe defendant, and upon tbe express promise of tbe defendant that be would repay tbe amount thus advanced. Tbe defendant denies that any sucb contract was entered into between bim and the plaintiff. But, under the instructions of the court, it is very plain that the jury must have found that a contract was entered into substantially as testified to by the plaintiff. In various instructions the jury were told that if the defendant requested the plaintiff to advance the money to purchase the land of Hudd & Wigman, agreeing to repay it in a short time, then the transaction was in the nature of a loan, the money being really the defendant’s money when thus paid, and that the contract was valid. And, as applicable to the facts attempted to be established on the part of the defense, the court directed the jury that if they should find from the evidence that the plaintiff purchased of Hudd & Wigman the land mentioned in their receipt, for himself, in order that he might get the land, and the pine thereon for himself, but that, after thus contracting for the land, he agreed that the defendant might repurchase it of him, or redeem it, then this agreement with the defendant would be void under the statute of frauds, and that the plaintiff could not recover in the action. There was testimony in the case that the plaintiff and defendant understood and agreed that the plaintiff should advance the money on the purchase, and take the title in his own name for the benefit of the defendant, as the defendant, for • certain reasons, did not want the business transacted in his name; and it is said such a transaction would constitute a trust, which, to be valid under our statute, must be in writing. But, as is well remarked by the circuit judge in answer to this objection, if the plaintiff had taken the title to the land in his own name according to such an understanding, and this action were one to compel a reconveyance of the lands to the defendant, then perhaps the trust could not be • shown by parol evidence ; but this suit is not brought for any such purpose. This action is founded upon a legal obligation of the defendant to pay money advanced at his request and for his use.

Now, whether the parties attempted by the arrangement to create a trust which was void, is a question not necessary to be considered. If A. requests B. to pay C. $100 on a purchase of real estate, and promises to repay the money advanced, as between A. and B. the transaction is essentially a loan of money, and does not involve any question under the statute of uses and trusts, or under the statute of frauds. This seems to us very plain, and this is really the foundation of the plaintiff’s action. It is simply for money paid at the defendant’s request, stating an express undertaking on his part to repay it. The purpose for which the money was paid is immaterial, providing it was for a lawful purpose, and it is immaterial whether the defendant was in the end profited by the payment or not. Payment in compliance with the defendant’s request is sufficient to support the action.

These remarks are sufficient to dispose of all exceptions taken to the refusal of the court to give the second and third instructions asked on the part of the defendant, as well as the exceptions taken to the instructions given.

If we are right in respect to the real character of the transaction set forth in the complaint, it is very obvious that it was competent for the plaintiff to prove that he paid the money at defendant’s request by parol testimony- This position would doubtless not be controverted by defendant’s counsel. There is one ruling in regard to the admission of evidence, which perhaps requires a further word of comment.

On his cross examination the plaintiff was asked if he did not know, at the time he carried on the negotiations with the defendant for the purchase of the land mentioned in the evidence, that the defendant was insane. This was objected to,, on the ground that the witness was incompetent to testify as to the insanity of the defendant; and also because the pleading did not put in issue the question of insanity.

The answer was the general denial merely, and we are inclined to hold, if the defendant intended to rely on the defense that he was insane when he entered into the contract with the plaintiff about advancing money for bim, that he should have set this up in his answer. This is in accordance with the spirit of the code ; and we think is the better rule upon this subject. See Van Santvoord’s Pleadings, p. 465. The evidence excluded was not admissible under the answer.

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