Bergenthal v. Fiebrantz

Lyon, J. Eeturn was made on the present appeal before a proper bill of exceptions had been settled, and, on motion of counsel for the appellant, by order of this court, the record was remitted to the county court for the purpose of obtaining a further return. The object of the order was to have the bill of exceptions attached to the record and returned, but it was not so expressed in the order. The learneS county judge seems to have been in doubt as to the purpose of the order, but by his direction a further return has been made consisting of a large mass of testimony certified by the reporter to be a complete and correct transcript of the testimony given on the trial of this action, together with what purport to be certain questions proposed on behalf of the appellant to be propounded to the jury, and the charge of the judge to the jury. The reporter’s certificate was followed by these words: “This was all the testimony.” To the foregoing matter, the judge appended the following certificate: “ The foregoing, from the certificate of the reporter, appears to be all the proceedings had upon the trial of said cause, and if the appellant’s prayer for a further return includes and means the foregoing proceedings, the clerk of this court may attach the same to the original bill of exceptions, and make return of the same with the original bill, and return the same to the supreme court in pursuance of the order of said court made the second day of May, 1879. The original or copy of [440] application not being before me, the substance of the same not being included in the order, I am at a loss to know what return to order the clerk to make, but suppose it to mean the testimony and proceedings had upon said trial, including the charge of the court; and hence the clerk is ordered to return the same as above. “ To which the plaintiff objected, for the reason that no copy of the foregoing testimony and proceedings has been served in this action, and the respondent has not had an opportunity to examine the same; that the order made by the supreme court in said action as to a further return has not been complied with; and that no notice of the settlement or change of the bill of exceptions has been given, as required by law; that respondent appears for the purpose of entering these objections at this time, and for no other -purpose, and said order is made, fts above, subject to said objections and exceptions.” It is now objected that the alleged bill of exceptions was not properly settled as such — in fact, that it is not a bill of exceptions. The certificate of the judge is very peculiar, and we have had some difficulty in determining whether or not he intended to certify that the testimony returned here was actually given on the trial. The certificate should have been more direct in its terms. However, we cannot think that the judge would order the clerk of his court to send here such a mass of written matter unless he intended so to certify it that it would be part of the record in the case. Hence, without stopping to analyze the certificate, we must hold that the documents to which it is annexed constitute a bill of exceptions in the cause, and that it contains all of the testimony given on the trial. When the county judge settled and signed this bill, he determined the regularity of the proceedings preliminary thereto, and we cannot review such determination on this appeal. If a bill of exceptions is not properly settled, the remedy is by [441] motion to the proper court to strike it from the files. This practice was adopted in Oliver v. Town, 24 Wis., 512, and in Sexton v. Willard, 27 Wis., 465. In-each of these cases the bill was defective on its face; but no good reason is perceived why the same practice should not prevail in any case wherein, for any reason, a party desires to expunge from the record what purports to be a bill of exceptions, or to impeach its verity. This brings us to the merits of the case. The jury were instructed that if the defendant fairly and honestly intended to bid on the distillery, and the $300 was paid to him in consideration that he would refrain from bidding, the contract was an illegal one, and there can be no recovery in the action. Under this instruction the verdict for the plaintiff necessarily negatives the- claim of the defendant that the money was paid as the' consideration for not bidding at the sale of the distillery. We have, therefore, no concern with that branch.of the case. Under the pleadings, evidence and charge of the court, the jury must have found that the money in controversy was paid the defendant on account of the alleged contract for the sale and purchase of salt as claimed by the plaintiff, and that the same was paid by William ■Bergenthal under a mistake of fact. All the knowledge William had of the salt transaction, he obtained from the defendant on the occasion of the sale of the distillery; hence, if the money was paid under a mistake of fact, the mistake was produced by the misrepresentations of the defendant to William of the facts of that transaction. If the money was paid by William for the plaintiff under these circumstances, the plaintiff is entitled to recover. Add. on Con., 42. Therefore, the controlling question is, Does the evidence tend to prove that the defendant misrepresented the salt transaction to the plaintiff’s agent? If the evidence tends to prove this, the judgment should be affirmed; otherwise, it must be reversed. The evidence furnishes no reason to doubt that the defend [442] ant honestly believed that the plaintiff was indebted to him on account of the salt transaction. He stated to the agent that the plaintiff owed him $500 on that transaction (including interest), but was not asked and did not give the particulars of it. It is quite apparent that he did not assert that he had a legal claim upon the plaintiff for the money; for he refused to sue the plaintiff therefor when that course was suggested by the agent, and he disclosed that the statute of limitations had probably run against the claim twice over. He also disclosed sufficient to inform the agent that the plaintiff did not recognize the validity of the claim and would not pay it. He’demanded $500; the agent offered him $300, and he accepted the offer. It seems to us that the ease stands as it would had the defendant said to the agent, “ Tour brother Francis is honestly indebted to me in the sum of $500, principal and interest, on account of a salt transaction between us thirteen years ago. He denies the indebtedness, and will not pay it. I will not sue him for it, because I cannot recover the money by suit. I demand, however, that you pay me for him the amount of my claim, because I believe it is an honest one.” We find in the record no evidence of the misrepresentation, of any material fact by the defendant, or that the money was paid through any mistake of fact on the part of The plaintiff’s agent. The defendant seems to have disclosed truly all that good faith required him to disclose in the first instance; and if the agent desired to know more of the transaction than was thus disclosed, he should have interrogated the defendant concerning it. His failure to do so was equivalent to saying to the defendant: “ Ton say your claim is an honest one. I do not care to know the particulars of the transaction out of which it arose, or what my brother thinks or has said about it; for I know you cannot recover it by suit, and you assure me that you will not bring suit for it. You demand $500. I will pay you for my brother $300 to settle it, because I am satisfied the claim is honestly made.” [443] We have here, therefore, the case of a disputed claim of $500 against the plaintiff (probably not enforceable by suit, but resting in a moral obligation alone), made in good faith by the defendant, which, with knowledge of all the material facts and without fraud or misrepresentation on the part of the defendant, the agent of the plaintiff, acting for him, compromises and settles by paying $300 in full, discharge of it. This is the case made by the plaintiff’s testimony, by which he is bound; and we think that it conclusively appears that the payment of $300 was a valid and effectual compromise of a disputed claim, which neither party can impeach. Because it appeared from the testimony of the plaintiff that he is not entitled to recover back the money sued for, the motion for a nonsuit should have been granted; or, that being denied, the motion for a new trial should have been granted. By the Court. — Judgment reversed, and cause remanded for a new trial.