108 Wis. 38 | Wis. | 1900
Did Grunert pay the note to the Citizens’ National Bank ? An affixmative answer to that will conclude Oh'unert on this appeal. A negative answer will require a reversal as to all the defendants.
It appears that Speieh and Marty operated several cheese factories during the time covered by the transaction stated in the findings, and that Grunert handled their products and was largely their financial agent. The Citizens’ Bank, desiring payment of the Wyss note, Durst, the cashier of the bank, suggested to Grunert to take it up because of his business relations with- Speieh and Marty. That resulted in Grunert paying to the bank the amount of the note and taking the paper into his possession. The direct evidence of what occurred at that time was given by Grunert, Durst, and Hodges, the assistant cashier of the bank. Grunert testified, in substance, as follows: ‘ I was security for a large amount for Speieh and Marty. I had signed for $5,000 for them at the bank. Durst called on me several times to get Speieh and Marty to reduce their indebtedness to the bank. I agreed to buy the $2,000 note on condition that my indebtedness could run. I dealt with Hodges when the note was taken up. I directed Hodges not to stamp the note paid, as I wanted to keep it. I said I wanted it understood that I was buying the note.’ Grunert further testified as to the subsequent transactions with the note: ‘After I purchased the note and before it was finally paid, I sold it to the First National Bank and afterwards took it back. While the note was in the First National Bank, Wyss was
Durst testified that when Grunert obtained the note there was no talk about extending time on his paper as a consideration for taking up such note; that there was no offer to sell the paper, nor intention to do so. But he further testified that he took no part in the actual deal between the bank and Grunert; that it was conducted on the part of the ■bank by Hodges. Hodges testified as follows: “Ido not remember exactly what was said when the note was transferred to Grunert. He indicated that he wanted the note paid, referring to it as the c Wyss note,’ and I got it out of the case and computed the interest. I do not know as there was anything said in respect to the matter. I started to stamp the note paid. He indicated that he did not wish it stamped, and then I delivered it to him. The note was paid as far as our understanding went. We got our money ■on the note. According to my recollection Grunert did not propose to buy the note, and there was no proposition on the part of the bank to sell it. He did not ask or give any intimation that he wanted to buy the note.”
The following circumstances corroborate wThat Hodges and Durst said was their understanding of the transaction: The paper was turned over to Grunert without indorsement though it was payable to the order of the bank. Grunert charged the money paid for the note to Speich and Marty in his account with them, though he kept a bills receivable account on his books. He rendered a statement of the book account to Sjpeioh and Marty, indicating that they were charged with the money paid for the note. He did not notify Wyss of his ownership of the paper till about seven months after he obtained it, and not until the financial condi
The circumstance of the note being turned over without indorsement is without any reasonable explanation that can readily be suggested consistent with the theory that it was sold. On the other hand, the fact that the paper was not. stamped paid is quite as persuasive in favor of the theory that it was purchased. The only explanation of the circumstance that the amount paid by Grunert for the note was charged by him to Speioh and Marty as money due on account and billed to them as such in a statement subsequently rendered to them, is that they wanted such a statement so
The above review of the evidence and conclusions disclosed thereby sufficiently shows that it cannot be said that the finding of the referee is clearly against the preponderance thereof. When there is a clear conflict of evidence and of the reasonable inferences therefrom, so much depends upon the appearances of witnesses, their manner on the stand, and the personal study of them during the trial which the careful trier will give in -order to accurately weigh the evidence, that it is not safe to disturb his findings except in a clear case. There is a wide difference between preponderance of evidence on one side of a controversy and clear preponderance on the other. So, when the trial judge or referee, with the peculiar advantages of-his position, decides as to where the truth lies on a controverted question of fact, it is not often that such decision is disturbed. In order to justify such disturbance, the evidence must not ■only preponderate against the finding, but the overbalancing that way must be sufficiently significant to produce conviction that the evidence did not receive proper consideration by the trial court, through mistake in overlooking material portions thereof or from prejudice or some -other cause. That is plainly requisite to fully satisfy the rule as laid down in the books and supported by the adjudged cases, that the findings of a referee, confirmed by the court below, will not be disturbed unless against the clear preponderance of the evidence, which rule is the test to be applied to a referee’s findings according to the decision of this court. Zoesch v. Thielman, 105 Wis. 117.
The test above indicated plainly precludes disturbing the findings of fact on the subject of whether the note was pur
As to appellants Speieh and Marty we are unable to discover anything in the facts found by the referee to support the judgment. The most respondent claims the evidence shows is that they failed to notify Wyss that the note had been paid when he pressed them for payment thereof and that they thereby aided Grunert in carrying out his scheme of saving himself harmless from loss by treating the paper as an outstanding obligation against Wyss. The trouble with that is, there is no finding to that effect, and the evidence by no means clearly establishes the claim that when Wyss called upon Speieh and Marty for payment they knew the note was not in existence as a legal obligation. Grwnert on one occasion gave proof to them that the money due him
The failure to hold two of the defendants liable to plaintiff does not of itself militate against holding Grunert. If the theory of the complaint were that there was a fraudulent •agreement between the three appellants executed to plaintiff’s damage, it would show a several as well as a joint liability. The concert of action would be material only in order to show a joint liability rendering all severally liable also for the result of the wrong, without regard to the relative benefit they obtained. Fountain Spring P. Co. v. Roberts, 92 Wis. 345. The wrong to plaintiff was remediable by an action for deceit whether it was committed by one of the parties •acting alone or by all of them acting in concert. So the failure to hold Speioh and Marty is of little significance on the question of whether Grunert is liable.
It is said this action was not maintainable because the •evidence shows respondent received full reparation from Speioh and Marty for any wrong done him; that he collected -of them the full amount of the payment made to Grunert. ¥e do not deem it necessary to discuss at length the evi
A further point is made that this action is not maintainable without restoring defendants to their former situation. How such failure would affect Speich and Marty, if the facts showed they were otherwise liable, need not be discussed. As to Gnmert, the rule invoked has no application, because respondent received nothing of value from him. Having received nothing of value, there was nothing to be returned as a condition precedent to the commencement of the action. City Nat. Bank v. Kusworm, 88 Wis. 188; Higham v. Harris, 108 Ind. 246; Snow v. Alley, 144 Mass. 546, 554. The doctrine that a person cannot rescind a contract or sue for money or property parted with thereon, on the ground of fraud, without returning to his adversary what he himself received on it, refers to the relations between the parties to the contract, not to the rights of strangers thereto. As said in Gay v. D. M. Osborne & Co. 102 Wis. 641, rules of law are supposed to be consistent with reason and com
What has been said covers all questions presented on the
By the Court.— The judgment appealed from is reversed as to Speich and Marty and affirmed as to Grunert, costs in this court to go against respondent for clerk’s fees and printing. The cause is remanded with directions to modify the judgment in the circuit court accordingly, dismissing the case as to Speich and Marty, with costs.