Lessel v. Zillmer

Dodge, J. 1. The extended discussion over the existence or sufficiency of any consideration for defendant’s admitted promise to pay plaintiff the amount of her claim out of the profits of the sales of the mortgaged stock of goods is hardly -justified by the situation shown practically without controversy. It is undisputed that the first, second, and third mortgagees of this stock, supposed by all to be worth much in excess, consented to a transfer thereof to defendant upon certain promises made by him, including that above stated, and that the transfer was made and accepted in pursuance of that consent. No consideration for a promise to pay the purchase price can be more complete than the receipt of the property purchased. The situation is not changed by speculation as to whether defendant might have obtained this stock of goods without making the promise to plaintiff or without her consent, for he did not do so. Equally futile is conjecture as to whether plaintiff could have realized anything if the arrangement with defendant had not been made, or whether she could have found another purchaser for the goods on terms to protect her mortgage interest therein. She had no occasion to make any effort to do so, because the agreement sued on was made, and for that reason refrained. Not dissimilar in principle, though much weaker in their facts, are Treat v. Hiles, 68 Wis. 344, and Rollins v. Hare, 15 Ind. App. 677. The conclusion of the trial court that defendant made a binding agreement, upon sufficient consideration, was clearly right. [338] The foregoing statement of the actual transaction disposes of the further objection that defendant’s promise was void, under the statute of frauds, as being one to answer for the debt or default of Mack. It was simply a promise to pay plaintiff for her interest in the goods purchased by defendant, out of the proceeds thereof, a sum measured, in. the maximum, by the amount of that debt, which itself measured her interest. It was wholly original, and was independent of Mack’s obligation to pay. Indeed, it is even doubtful whether the sums actually paid by defendant affected or reduced Mack’s debt at all. If they did so, such result came, not from the agreement between plaintiff and defendant, but from Mack’s right to insist that anything realized by plaintiff from her security should be applied on her debt against him. Nor would a discharge of Mack from his debt to plaintiff have had any effect upon defendant’s duty or liability. It was not a promise to pay Mack’s debt, as such, but to pay a sum, limited by the amount of that debt, as purchase price of the goods received by defend- ■ ant. Under all the authorities, it was not within the statute of frauds. Putney v. Farnham, 27 Wis. 187; Young v. French, 35 Wis. 116; Weisel v. Spence, 59 Wis. 301; Cunningham v. Brictson, 101 Wis. 378. 2. We find nothing in the record to justify us in repudiating the finding of the second referee that defendant realized profits in excess of the amount due on plaintiff’s note-,, which finding was accepted by the trial court. The legal basis adopted by the referee was that, when plaintiff had proved delivery to defendant of goods of the ostensible value of over $41,000, the disposition of which had been in his discretion and exclusively within his knowledge, the burden fell on his shoulders to account fully, and to prove, if he so claimed, that his disposal of the goods had yielded proceeds less than plaintiff’s claim. Of the correctness of this basis, there can be no doubt. The principle is element [339] ary that on bim who has the exclusive knowledge rests the burden of proof, and especially so with reference to dealings with goods held in a fiduciary capacity. The defendant not only failed to prove- how or at what prices he had disposed of a considerable share of the property, but admitted that he had deliberately destroyed the record evidence thereof by most gross spoliation of his account books,— by actually cutting out from the sales book and ledger the leaves containing the entries which would have furnished the needed information. Application of the rule, Omnia prœsumuntur contra spoliatorem (Dimond v. Henderson, 47 Wis. 172), might well have held defendant to account for these goods at their inventory value; but the referee stopped short of that extreme, and charged him only the average prices shown to have been received for others of the goods. Upon that basis, he finds that defendant’s receipts must have exceeded the amount adjudged to the plaintiff by approximately $1,000. Other facts, such as the diversion of selected goods, of inventory value $7,200, into his own private business, where presumably they produced full trade prices, though he accounted for them at only $2,400, serve to confirm the conclusion that defendant will have realized a substantial profit to himself after carrying out his promise to the plaintiff. 3. The alleged error in permitting amendment of the complaint was without prejudice, for the judgment recovered is upon the cause of action stated in the original complaint, and not upon that brought in by the amendment. By the Court.— Judgment affirmed.