Trustees of the Wisconsin State Grange v. Kniffen

Cassoday, J. LeGrand Kniffen was state purchasing agent at Milwaukee for the plaintiff from January 19, 1878, to January 2,1890. The bond and mortgage here foreclosed were to secure the faithful performance of such agency by Kniffen, and for the accounting and paying over of all money and other property coming into his hands as such agent. It appears that the salary of Kniffen was fixed from year to year by written agreements, which were from time to time modified and changed; that the salary was ostensibly fixed at $1,500, but was contingent upon his making the agency self-sustaining, allowing a certain per cent, depreciation of fixtures; and at times that, in case of shortage, it should be left optional with the plaintiff to allow the salary out of the excess of gain during previous years; and at times that he should not draw the salary so as to reduce the assets below a certain amount; and at times that, if he failed to make the agency self-sustaining, he should stand the loss to the extent - of one half of his salary; and at times that such salary should not be drawn so as to reduce the assets from year to year, but that the deficiency of salary in one season might be made good when warranted by the income •of' another season. There appears to have been a good- deal of conflict as to the state of the accounts between the respective parties for the years mentioned. It is enough to say that, after careful •consideration, we are unable to hold that a preponderance [18] of the evidence is against the finding of the court as to th'e amount due to the plaintiff from Kniffen. The plaintiff is incorporated and organized under the laws, of this state, as indicated in the foregoing statement, and it filed with the assignee in the insolvency proceedings its verified claim for the balance due on account, January 28,1890. That is the same claim sought to be enforced and collected in this action. That being so, the order and discharge made, and granted by the circuit court to LeGrand Kniffen is, under the statute, final and binding upon the plaintiff. Sec. 12, ch. 385, Laws of 1889; sec. 1702o, S. & B. Ann. Stats. The plaintiff being a resident of this state and having proved its claim as indicated, the discharge pleaded constituted a bar- to the recovery against LeGrand Kniffen personally for or on account of such indebtedness. Secs. 14, 15, ch. 385, Laws of 1889; secs. 17022q, 1702r, S. & B. Ann. Stats. But such discharge was no bar to the -foreclosure of the mortgage and a sale of the mortgaged premises to satisfy the debt secured by the mortgage. Roberts v. Wood, 38 Wis. 60. But such discharge was sufficient to prevent any personal judgment against LeGrand Kniffen for any deficiency on such foreclosure sale. Ibid. By the Court.— That part of the judgment holding the defendant LeGrand Kniffen personally liable for the deficiency is reversed, and the judgment in all other respects is affirmed, but without costs to either party, except the plaintiff must pay the fees of the clerk of this court. Newman, J., took no part