Currie v. Michie

Cassouat, C. J. It is undisputed that James A. Fraser-was in the employ of Currie Bros. February 3, 1893, and had’ been for some years. On or about that date Currie Bros, discovered that James A. had for some time been appropriating; their money to his use, without their knowledge or consent,, to the extent of $4,000 and upwards. When confronted with-the fact of such discovery, James A. admitted that he had so-converted the moneys of the firm to his own use to the extent 'mentioned. James A. was at the time about thirty-three years of age, and his father was about seventy-seven years of’ age. He was told by Currie Bros, that they wanted their124 money back or security, and they finally agreed that, if James .A. would give them security for $4,000, it would be satisfactory. James A. thereupon went to bis father and told him .the circumstances, whereupon his father told James A. to write out a paper, and he would sign it; and he then wrote 'Exhibit 2, dated February 10, 1893, set forth in the statement of facts, and called the “guaranty,” and his father then .signed it, and James A. delivered it to Currie Bros, the next day, or within a day or two, as stated in the findings. 'There is no claim nor pretense that the deceased did not sign that guaranty freely and voluntarily, and without any fraud, •duress, or threat of prosecuting James-A. by Currie Bros. The same is true as to the $4,000 note which the evidence on -the part of the plaintiffs tends to prove was about the same time drawn up by James A. at the house of his father, and -then signed or indorsed by himself and his father, and then 'by him delivered to Currie Bros., and by them subsequently lost. The defendant denied the existence of any such note, and the findings fail to determine the question, but its de--tennination does not seem to be very material. The important question upon which the case must turn is whether the settlement of August 28, 1893, was valid and binding upon the deceased. There is certainly strong evi•dence tending to prove that the deceased was induced to make -that" settlement to prevent Currie Bros, from instituting criminal proceedings against James A. on account of such embezzlement. Such evidence is to the effect that about a month prior to the settlement James Currie called at the house of the deceased, and went upstairs and into his bedroom, and remained there with the deceased about an hour, with the door ■■closed, and during the time talked in a loud and excited manner about James A. and security, which was heard by those •outside, and that when James Currie left the bedroom he •came down stairs alone, and passed out without speaking to .-any one. After the discovery of the embezzlement, Mr. Moses [125] IT. Brand, an attorney at law, was employed by tbe deceased' to investigate tbe matter; and be testified to tbe effect tbat a-, short time before tbe settlement be was told by Currie Bros., tbat, if tbey could not get tbeir money back, tbey would insist upon having criminal action against James A.; tbat the-parties met at bis office pursuant to agreement to make such settlement August 28, 1893; tbat at tbat time James Currie■ and tbe deceased, after some talk, arranged tbat tbe deceased' should surrender to Currie Bros, tbe duebill be held against: them, of $2,150, which, with tbe interest, then amounted to-’ $2,225.25, and give to Currie Bros, bis note for tbe balance-of tbe $4,000, which amounted to $1,774.75; tbat be then drew tbe note which was signed by tbe deceased, and at the-request of tbe deceased he drew tbe contract or receipt, to the-, effect stated, and also stated: “In consideration of the above payment it is -understood' and agreed that criminal proceedings will not be instituted by us against said James Eraser for tbe above or any-other-amounts of money taken by him or for any other sum of" money which may have been taken by him.” Tbat be then added at tbe suggestion of Mr. Currie a proviso to tbe effect tbat, if tbey should thereafter discover that' James A. bad wrongfully taken from them any sum in excess-of tbe $4,000, then he was to give them bis note therefor,.. and, if he should refuse, then nothing therein should prevent them from taking criminal action against him; and tbat the-language of the paper was bis own. Such agreement bears-date August 28, 1893, and is signed, -“Currie Brothers per James.” After a good deal of hesitancy, Mr. Currie virtually admits tbat bis signature to tbe paper is genuine, but claims-that be signed it without knowing its contents, and denies-that there was any understanding that they were to refrain from prosecuting James A. Tbe court refused to find whether such written agreement was in fact made. It is difficult to believe tbat Mr. Currie did -not know tbe contents o£ [126] the paper when he signed it, and yet there is no evidence that 'he read it or that it was read to him before he signed it, nor •that the agreement not to prosecute, contained in the'writing, •was made in pursuance of any parol agreement or understanding between the deceased and Mr. Currie. Mr. Brand testified that it was impossible for him to give the details of the -conversation between Mr. Currie, Mr. Eraser, and himself •on that occasion. Of course, it was possible for Mr. Currie to believe that the paper he signed was a mere memorandum of the surrender of the one note and the giving of the other. Mr. Brand was a lawyer, and necessarily knew that no valid •contract or agreement to compound a felony could be made. 'The deceased executed his will July 31, 1894, about eleven ■months after the settlement in question, and nearly three months after he had paid $857.86 on the note of $1,774.75. Mr. Brand was a subscribing witness to the will, and pre-sumably wrote it, since he was the attorney and counsel for ;the deceased. And yet that will contained this clause: “Having advanced to or paid for my son James Eraser large sums of money I purposely and intentionally omit making any devise or bequest to him and'do intend and desire that 'he shall not receive any part or portion of my estate.” This manifestly refers to the $2,225.25 and the $857.86 -so paid by- the deceased for the benefit of his son J ames A. Mr. James Currie is corroborated in some particulars by -other witnesses — especially by J ames A. Eraser. The transaction took place nearly ten years before the trial. The ■county court and the circuit court saw and heard all the witnesses, and hence those courts were each in a much better ■position to judge of the credibility of the witnesses than this -court. The claim of Currie Bros, against the estate of the deceased was allowed in both courts. In view of all the cir•cumstances, we cannot say that the findings of the trial court .are against the clear preponderance of the evidence. In reach [127] ing this conclusion, we have confined ourselves to the competent evidence in the record. Several errors are assigned for the improper admission of ■evidence, and for the refusal to strike out testimony. The rule is well established that in a case tried by the court, as here, the improper admission of evidence is not available as •error upon appeal. Wolf v. Theresa Village M. F. Ins. Co. 115 Wis. 402, 405, 91 N. W. 1014, and cases there cited. If the evidence properly admitted supports the findings, it is ■sufficient. Id. Error is assigned because the court permitted James Cur-rie to testify to transactions and conversations with the deceased when no one else was present, and for refusing to strike out such testimony. But it appears from the record that the defendant first called and examined him, under sec. 4068, Stats. 1898, as an adverse witness, and on such examination he had testified to the effect that he saw the deceased in regard to the embezzlement a few days prior to August 28, 1893, at his own house, and also at the house of the deceased, when they arranged to meet at Brand’s office, and that they met pursuant to that agreement, and that the purpose of the meeting was to adjust this embezzlement matter — to make a settlement which was afterwards made — and he was further asked and answered the question whether he ever promised the deceased that he would not prosecute his son. By such examination the defense opened the door, under sec. 4069, Id., for the admission of the testimony to which objection is now made. There was no error in excluding the testimony of the defendant’s husband, who was offered as a witness generally in 'the case, and not as the agent of his wife. The witness Campbell, after testifying at length as to his acquaintance and conversations with the deceased, and as to the trouble of the deceased with Currie Bros., and as to his [128] disposition, habits, and conduct, stated that on one occasion,, after Qurrie bad passed by on tbe street, tbe deceased said he did not speak to them at all, and thereupon tbe witness asked him as to what was tbe matter. Error is assigned because tbe court sustained an objection to tbe question, and refused to-strike out such declarations of tbe deceased. We perceive no reversible error in such rulings. Tbe testimony sought to be-stricken out is all before tbe. court, and is without probative-.force. Tbe unanswered question called for nothing material to tbe issues in this case. By the Gourt. — Tbe judgment of tbe circuit court is affirmed.