Sleep v. Heymann

Taylob, J. The learned counsel for the appellant insists that the order striking off the demurrer as frivolous was — 503 — erroneous, and claims that the complaint was bad for the reason first assigned, that it does not state facts sufficient to constitute a cause of action. Ve think the allegations of the complaint are sufficient to show that the plaintiff was induced to pay the money to the clerk of the court in satisfaction of the judgment set out in the complaint, by reason of the false statement made by the defendant that such judgment remained unpaid and unsatisfied, and that he would not have paid the same if such false statement had not been made by the defendant. The defendant cannot be permitted to allege that the payment was a voluntary payment on the part of the plaintiff with full knowledge of all the facts, when it appears that such payment was made by reason of his false statements as to the fact of its being an existing unpaid judgment which was a lien upon the lands which the plaintiff conveyed with covenants against incum-brances, accompanied with a threat that unless the judgment was immediately paid and satisfied he would issue execution thereon, and collect the amount of the same out of the lands so conveyed by said plaintiff The mere statement of facts is sufficient to convict the appellant of a gross fraud, if he knew that the judgment had in fact been paid, and upon the demurrer to the complaint his knowledge of the previous payment thereof is admitted. It needs no citation of authorities to show that the appellant had no right to retain the respondent’s money, obtained, either directly or indirectly, by such a fraudulent representation on his part. Had the appellant told the truth in regard to the matter, it is quite clear the respondent would not have paid his money to the clerk to satisfy the judgment. Having induced its payment by a false statement made for that purpose, and the money having been paid to the clerk relying upon the truth of such statement, the appellant was not entitled to receive such money from the clerk and hold the same against respondent. Having induced the payment — 504 — by a false and fraudulent representation, bis receipt of tbe money from tbe clerk was tortious, and an action of tort will lie for the recovery thereof. Tbe following cases, cited by tbe learned counsel for tbe respondent, fully sustain tbe sufficiency of the complaint to charge the appellant with fraud: Smith v. Mariner, 5 Wis., 551; Miner v. Medbury, 6 Wis., 295; Kelley v. Sheldon, 8 Wis., 258; McClellan, v. Scott, 24 Wis., 86; Birdsey v. Butterfield, 34 Wis., 52; Law v. Grant, 37 Wis., 548; Simmons v. Aldrich, 41 Wis., 241. Tbe other grounds of demurrer were not insisted upon in this court, and it is evident they were not well taken. It is urged that tbe circuit court bad no authority to direct tbe appellant, as a condition of bis right to answer after tbe demurrer was stricken out, that be should stipulate to take tbe deposition of tbe witness McMillen upon tbe notice for that purpose which bad been served upon him. If it appeared to tbe court that tbe demurrer was interposed for tbe mere purpose of delay, then we think such a condition was a proper one to make in the case, so as to prevent the accomplishment of that purpose. And again, as tbe only apparent objection to tbe notice which bad been given was that it was served before an issue of fact bad been joined in tbe case, tbe notice was in fact properly served, and would have been entirely sufficient to accomplish its purpose without any stipulation on tbe part of tbe appellant.. See'secs. 4102, 4110, 4112, R. S. 1878. Tbe objection that tbe deposition óf McMillen was not properly certified is clearly unfounded. See Hayes v. Frey, 54 Wis., 503. . Tbe objection to receiving any evidence under the complaint was properly overruled, for tbe reason given for striking ofi tbe demurrer. It is alleged as error that the court permitted tbe answers of McMillen to tbe fifth aud sixth interrogatories in bis deposition to be read to tbe jury. It will be seen by an ex505 animation of the deposition that the interrogatories were put to the witness McMillen for the' purpose — First, of showing that the judgment in question had been fully paid' long before the money was paid by the respondent to the clerk of the court; and, second, to show that the appellant had full knowledge of such payment. The witness McMillen was the person in whose favor, jointly with the appellant, the judgment- was rendered, and it also appeared that the appellant and McMillen were partners in business when the judgment was obtained and when the' alleged payment was made. After a careful examination of the answers objected to, we can see nothing in them which is not competent and material for the purposes for which they were offered. It appeared from the evidence that Witt had given a chattel mortgage to secure the payment of the judgment in question, and that he afterwards paid the amount due on the chattel mortgage. One Sprague was called as a witness by the respondent to prove that Witt gave a chattel mortgage to secure the payment of this judgment, and that, upon giving such chattel mortgage, the sheriff, who had an execution upon the judgment, by the direction of McMillen, indorsed the same satisfied. This evidence was objected to by appellant on the ground that it was not the best evidence of the fact; that the mortgage and execution were the best evidence; and that parol evidence of them ought not to have been received. We think the evidence was competent. The question in controversy between the plaintiff and defendant was whether the judgment had been paid. Neither were seeking to recover, in this action, either upon the judgment or mortgage, but in order to show that the judgment had been paid, it was necessary to show that a mortgage had been given for the amount thereof, and that such mortgage had been fully paid. The existence of the mortgage was a collateral matter, and it was not error to allow parol evidence of the fact. See Gordon v. Mulhare, 13 Wis., 22; Hawes v. — 506 — Woolcock, 30 Wis., 213; Teegarden v. Town of Caledonia, 50 Wis., 292; Supples v. Lewis, 37 Conn., 568; St. Louis & C. R. R. R. Co. v. Eakins, 30 Iowa, 279; Rayner v. Lee, 20 Mich., 384; 1 Greenl. on Ev., secs. 89, 90; McFadden v. Kingsbury, 11 Wend., 667. The respondent afterwards offered in evidence a copy of the mortgage, with an assignment thereof indorsed thereon signed by the appellant. This copy of mortgage, with the ■assignment thereon, was produced by the town clerk, who testified that the same was filed in his office. The assignment on the back of this copy of mortgage assigns “ a chattel mortgage now on file in the office of the town clerk of said town of Earmington, of which said mortgage the within is a true copy.” This, we think, was sufficient evidence against the appellant of the existence of a mortgage of which the copy produced was a true copy for the purposes of this action. The appellant denied the execution of the assignment, but whether he executed the assignment or not was a question for the jury, and went to the question of his knowledge of the actual payment of the judgment. The jury have found against him on that issue, and their finding is final in this case. It is very clear that the court properly overruled the motion for a nonsuit. There was certainly evidence in the case which tended strongly to show that the judgment had been paid and satisfied long before the respondent paid the money to the clerk of the court,’ and that the appellant had knowledge of such payment. Upon the evidence it was clearly a question for the determination of the jury and not for the court. Several exceptions were taken to the instructions given by the learned circuit judge to the jury, and exceptions were also taken to the refusal of the judge to give certain instructions asked. We think the judge submitted all the issues in the case plainly and fairly. He said: “ You are brought to — 507 — the determination of these three propositions of fact: First. Was the judgment paid in March, 1871? You have the testimony before you. You are to find from this testimony, taking it altogether, whether in fact that judgment was paid. Second. Did the defendant know, on or about the 24th of November, 1880, when the plaintiff paid'$293.34 as in satisfaction of this judgment, that the judgment' had been paid in March, 1871? If he did not know it, then he did not commit a fraud on the plaintiff in representing that it had not been paid. The fraud, if any there was, consisted in making representations which he knew to be false, and which he made with the intention to deceive and defraud the plaintiff, to induce him to pay moneythat he was not liable to pay nor the defendant authorized to demand. Third. Did the plaintiff pay the $293.34 on the 24th of November, 1880, as in satisfaction of the judgment, at the request of the defendant and on his representation that the judgment had not been paid? I have already stated that there is no controversy as to the fact that the defendant at that time represented that the judgment had not been paid. He admits it, and admits that he insisted on prompt payment. The vital question is, Did he at that time, when he represented that the judgment had not been paid, actually know to the contrary? So that, if you find that the judgment had been actually paid to McMillen, and the defendant did not know the fact, he committed no fraud in representing that it had not been paid.” No part of the charge above quoted was excepted to by the defendant, and it was undoubted^ sufficiently favorable to him; and wre think it presented the whole case to the jury. The first, second, and fourth instructions asked by the defendant and refused by the court were given in the general charge, and so it was not error to refuse to repeat them. The third instruction asked was irrelevant. It was an abstract proposition of law not in the case. The fifth — 508 — instruction asked and refused was properly refused. Although the plaintiff had no ownership or interest in the land upon which the judgment was a lien on the 2ith day of November, 1880, when he paid the money in satisfaction of the judgment, that fact would not justify a verdict in favor of the defendant. The evidence shows that he had owned the land and conveyed the same by warranty deed, with covenants against incumbrances, after the judgment had been docketed and while it was a lien upon such land; if it had not been paid he was interested in the payment of the judgment to the same extent as though he had owned the land at the time the money was paid by him. The sixth instruction refused was in substance like the fifth, and was properly refused for the same reason. The seventh was properly refused. There was no question of voluntary payment in the case. The case appears to have been fairly tried and fairly submitted to the jury upon proper instructions, and the verdict is fully sustained by the evidence in the case. By the Court.— The judgment of the circuit court is affirmed.