Leslie v. Keepers

Cassoday, J. The alleged settlement was in writing, and purported to be for the sum of $736.25, in full settlement for material and labor furnished by the plaintiff for the substructure of the bridge — the above amount being the full contract price for said substructure, less the amount paid him and for his account on the work. The principal contention of Keepers and Riddell is that such settlement was conclusive between the parties, and that, as the complaint failed to allege any mistake or fraud in making the settlement, it was error to allow it to be impeached upon the trial. There was evidence upon the part of the plaintiff in effect tending to prove that the plaintiff went to the office of Keepers and Riddell, in Milwaukee, about the time of the alleged settlement, and requested a settlement with them; that he did not then know how much he had received from them, nor how much they had paid out on his account; that they presented to him no statement, and showed him no books or account; that they declined to show him their books or any account of the moneys they had paid him or in his behalf; that there was no dispute between them, and no item of the account as subsequently rendered was talked over between them; that Keepers then told him that the sum above mentioned was the amount his due; that rely [127] ing upon the truthfulness of such representations, and not knowing the contrary, he signed a written statement of the above import, upon a promise that a bill of items should be subsequently sent him by mail as soon as their books were straightened up; that such bill of items was subsequently received by him from them through the mail; that such itemized bill purported to show a balance due the plaintiff of the amount above stated, but it included several items in no way connected with the labor or material furnished by the plaintiff for such substructure or any other matter for which the plaintiff was liable or in which he was interested; that the aggregate of such foreign items so wrongfully included in said bill amounted to $714.91; that the representation of Keepers, to the effect that there was only $736.25 due the plaintiff at the time of such alleged settlement, was false; that there was then his due, in addition, the aggregate amount of such foreign items. Such testimony on the part of the plaintiff was controverted and denied by testimony on the part of Keepers and Riddell, who gave a very different version of the alleged settlement. The issue thus made was fairly submitted to the jury by the learned trial judge. Under the charge of the court the jury must have found that the plaintiff’s version of what was said and done at the time of the alleged settlement was substantially true and that the evidence to the contrary was false. If the matter was properly open for investigation, then the verdict is a verity' and necessarily concludes the defendants. The settlement or accord and satisfaction was alleged by way of defense. Hot being a counterclaim nor pleaded as a part of a counterclaim it was to be deemed controverted by the plaintiff as upon a direct denial or avoidance as the case might require. Sec. 2667, R. S. Upon the issue thus raised, it was competent for the plaintiff to prove that his signature to the writing purporting to be a [128] settlement of certain matters was so procured by false representations and fraud. Waddle v. Morrill, 26 Wis. 611; Butler v. Regents of University, 32 Wis. 124; Canfield v. Watertown Fire Ins. Co. 55 Wis. 423, 424; Bussian v. M., L. S. & W. R. Co. 56 Wis. 332-337. These cases settle the practice followed by the trial court. We have no desire to renew the discussion. See note to this case in 31 N. W. Rep. 486. — Rep. It follows that the evidence upon the question indicated was properly admitted. It also follows that the alleged errors in the charge to the jury are without foundation, even had the charge been made a part of the record, which was not done. A lengthy argument is made to the effect that the plaintiff should not be allowed to affirm the settlement in part by retaining the money paid, and rescind it as to the residue, as has frequently been held by this court. But the facts, as necessarily found by the jury, present no such question. On the contrary, it appears from the undisputed evidence that the amount Keepers and Riddell agreed to pay was conceded by them to be his due; and the jury found he was entitled to several hundred dollars more. By the Court.- — ■ The judgment of the circuit court is affirmed.