Kammermeyer v. Hilz

Cassoday, C. J. When the case was here on the former appeal, it was presented as an action at law triable by jury. 107 Wis. 101, 82 N. W. 689. After the cause was remanded to the trial court on reversal, an equitable counterclaim was interposed to the effect that March 23, 1895, the defendants paid to the plaintiff the $600 mentioned in full payment, settlement, satisfaction, and discharge of any and all claims which the plaintiff had or might have in any portion of the $2,850 mentioned, and asked to have the receipt given therefor at the time reformed so as to express such agreement. Such equitable counterclaim was put in issue by a reply. The trial of that issue was for the court. Of course, it was competent for the court to take an advisory verdict of the jury, as [317] it did; but sueb verdict was not binding upon the court, as in an action at law. The special verdict was adopted by the court, and must be regarded as the findings of the court. The-important question is whether such findings are against the clear preponderance of the evidence. It is undisputed that Priest paid the $3,000 March 25, 1891, to settle a suit then threatened against him by the defendants by reason of his getting their daughter, the plaintiff, with child; and that the-terms of such settlement were in writing, signed by the parties. The plaintiff was a party to that settlement, and signed-some of the papers. It is also undisputed that such writings-were silent as to any portion of the money belonging to the-plaintiff, unless it is to be inferred from the agreement on the part of the defendants to care for, bring up, maintain, educate, clothe, and support the child, and save Priest harmless from all claims on account of his being the father of the child. Priest testified, against objection, to the effect that it was understood at the time that the money was to be used to bring, up and educate the child, and for the benefit of the plaintiff; that he “went there with the money to settle, and what” he “wanted was to be absolutely released from any further liability on account of this entire matter.” Priest is contradicted in some respects by other witnesses, but .it is obvious, even from the testimony of Priest, that a large portion of the money was to settle the claim made against him by the defendants, and to secure from them the agreement above mentioned. Assuming that the money was to be in part for the use and benefit of the plaintiff, still the question recurs-whether the plaintiff’s claim therefor was not fully settled, satisfied, and discharged by the payment of $600 made to her by the defendants March 23, 1895. The plaintiff made no-claim to any portion of the money received by the defendants-from Priest until more than a year after she was married,, and nearly four years after the settlement with Priest. It does not just appear when she first made claim to the money, [318] ■or any part of it, from the defendants. The complaint alleges that she first demanded the money from the defendants January 30, 1895. She testified that she employed counsel to get the money. A letter in evidence to the defendant Adam from her attorneys dated February 12, 1895, is to the effect that she was not satisfied with his proposition to give her a lot worth $300 or $400; that she claimed "half of the money, ■$1,400;” and if he had not that amount on hand, and could ,not raise it on his property, she would, if he preferred, take “$600 in cash and a lot in.North Milwaukee.” Under date of February 26, 1895, the plaintiff wrote the defendants to the effect that she wanted them to let her “have $1,000 of the money” they had “received from Priest, and to settle this matter”’ that, as the papers were written, she “would always have a right to prosecute, for” she “was allowed nothing at all.” Soon after the plaintiff wrote to the defendants: “I agree to the $600. If you lost more than I did, — that the most of-it belonged to you, — why, then, it is all right. However’, I always thought differently, and the law, too, is different. If the ‘sin money3 brings you luck, well, we will see. Perhaps the time will come when you wish that you had acted differently.” Under date of March 13, 1895, the plaintiff again wrote to the defendants, in effect, requesting them to let her know when they could give her the money, as it was wanted in a pending deal; that she would expect a “reply by the following Monday at the latest, for” they .could “get the few hundred dollars any time;” that, if they put off the matter indefinitely, so that the pending deal came to nothing, then she would “not be satisfied with the $600”; that she was “acting square enough by showing” her “good will in agreeing to the little”; that she did not think the lawyers would “be satisfied with so small an amount”; that she looked “for an •early reply as to when” they would give her the money. In pursuance of such negotiations the defendants paid the plaintiff the $600 March 23, 1895, and took the receipt first men [319] tioned. It appears from the clear preponderance of the evidence that the amount so paid was to be in full payment, settlement, satisfaction, and discharge of any and all claims which the plaintiff had to any portion of the $2,850 which the defendants received from Priest, and the trial conrt improperly refused to reform the receipt so as to express the settlement so •agreed to by the parties to this action. Such equitable counter-'daim is clearly established by the clear preponderance of the evidence. It is unnecessary to repeat the evidence. This conclusion makes it unnecessary to consider any of the other numerous errors assigned. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to sustain the equitable counterclaim, and to dismiss the action.-