Phillips v. McGrath

Cassoday, J. The contention relates principally to matters of fact. To detail and analyze the evidence would consume valuable space without any practical benefit. After carefully reading the printed case, none of us find any such convincing evidence of any different fact as would authorize this court to disturb any of the findings of the trial court. The circumstances under which the plaintiff procured the [127] notes and mortgage without any consideration, and when Patrick was under no sort of obligation to pay his brother’s debt, are, at least, very suspicious. Campbell’s letters to the plaintiff, put in evidence by the latter, pretty clearly indicate that he was authorized to receive payments on the notes and mortgage, and that he did receive one payment with the express sanction of the plaintiff. After that payment he informed the plaintiff, in effect, that Patrick wanted to pay up the notes and mortgage as fast as he could, and predicted that he would do so; that he could get the money of Patrick, who thought there was no other man to whom he could make payment but himself. Having been thus informed that Patrick regarded Campbell as the proper person to whom payments should be made, the plaintiff could not remain silent until after the payments were in fact made, and then, on failure to receive the amount collected from Campbell, repudiate the payments. In other words, such holding out of agency was sufficient to bind the plaintiff within the well-established rule. Bouck v. Enos, 61 Wis. 660. Moreover, we think, it appears from the evidence that the whole amount of the balance on the notes was paid to Campbell some time in 1867. The fa^ct that about that time the plaintiff was pressing collection and threatening foreclosure, and thereafter remained silent and let the matter rest for about fourteen years, suggests the inference that the plaintiff knew that Campbell had made the collection and had been looking to him for repayment. It is urged that Patrick's testimony as to his transactions with Campbell was improperly admitted, and should have been stricken out on motion of the plaintiff, because Campbell was dead at the time of the trial. The evidence was given without any objection, and then, by way of rebuttal, the plaintiff not only gave testimony as to his transactions with Campbell, but also put in evidence Campbell’s letters [128] to himself. Besides, there is no evidence in the record of the death of Campbell, unless it be inferred from a letter written by Patrick to the plaintiff in 1881, and put in evidence by the latter, in which he incidentally speaks of having heard that he was dead. This letter being in possession of the plaintiff, he must be presumed to have had knowledge of its contents, and, having had such knowledge prior to the trial, he should have raised the objection when the testimony was first offered, instead of waiting till the testimony was all in, and he had put in his rebutting testimony of the character indicated, without suggesting any excuse for the delay. Parties cannot thus speculate with the chances, and then avail themselves of the aid of the court, as a matter of right, to relieve themselves from the results of their own speculation. Besides, the motion was “ to strike out all, and each and every part and portion, of the testimony offered and introduced in evidence by the defendant.” This was altogether too broad, as it sought to exclude much testimony which ■was proper, and also to allow the testimony of the plaintiff himself, and the letters of Campbell upon the same subject, to remain as evidence. The plaintiff insists that there were a few dollars due him on any theory, but the times of payment were not very definitely fixed, and Campbell and Patrick having treated the notes as fully paid, equity will not go into a very close discrimination for the purpose of holding that there was three or four dollars still due, and thus authorize a judgment of foreclosure and sale, and its attendant costs, disbursements, and solicitor’s fees. Whether a bill in equity would be sanctioned for such a trifling amount may be doubtful. The plaintiff, having purchased his tax certificates after the mortgage was paid, must be relegated to some other remedy thereon. We discover no material error in the record. By the Court. — The¡ judgment of the circuit court is affirmed.