Hurley v. Walter

WiNslow, J. The appellants’ first contention is that it was error to refuse a jury trial. An issue of fact in an ordinary replevin action is, of course, an issue.for the jury. Sec. 2843, Stats. 1898. Whether it remains a jury issue after the original defendant has brought the property into court and procured the substitution of a rival claimant as defendant under the last clause of sec. 2610, Stats. 1898, may be a question open to doubt. It has been held in New York, under a similar statute, that in an action on an insurance policy, where the original defendant has brought the money into court and a rival claimant has been substituted as defendant, the action becomes an equitable one in the nature of the old action of interpleader. Clark v. Mosher, 107 N. Y. 118, 14 N. E. 96. The present case, however, was nqt a case of •substitution of a rival claimant upon deposit of the fund or property in court, but simply a case under the first clause of the section cited, where third parties on their own application-and for the protection of their alleged interests in the subject matter of the controversy were interpleaded as additional defendants, the original defendant being still before the court. It is very apparent that, under the broad provisions of this section, equitable claims of various kinds may be injected into an action at law, and that the proper method of ■disposition of the issues so raised may not be free from doubt and difficulty. We do not think, however, that we are obliged to enter this field in the case before us. If it be conceded that the interveners originally had a right to a jury trial, they could waive that right if they chose, and we think they have effectually done so in this case. The order of intervention made upon the motion of the interven-•ers required the plaintiff to amend his summons and complaint so as to make the interveners defendants, “with apt words to charge them as setting up such claim as their petition sets forth, as plaintiff may be advised,” and gave the interveners the usual time after service to answer such amended complaint. The petition of the interveners set [512] forth title under the bill of sale, and thus by tbe order of intervention the plaintiff was required to set forth in an amended complaint the interveners’ claim under the bill of sale, and he must ex necessitate meet that title and show by his complaint that it was invalid, by other allegations in his-complaint, or be turned out of court. Tie did this by serving: a complaint which is unmistakably a complaint in equity,, asking for the setting aside of the instrument and the quieting of the interveners’ claim of title. To this complaint in equity the interveners made answer upon the merits, thus forming an equitable issue by consent. It appears by the recitals of' the findings that when the case was called for trial all parties, including the railway company, appeared by their respective counsel, and that the counsel for the railway claimed that, the property having been delivered to the plaintiff and the consignee having become a party defendant, “the case should proceed upon the issues in said action between the plaintiff and the interpleaded defendants, and this idea was acquiesced in by all concerned,” whereupon the case proceeded to trial. The issues between the plaintiff and the in-terveners, as they had been framed, were distinctly equitable issues, and we think that under the facts stated the interveners had waived any right which they might have had to a jury trial and consented that the action should be treated and tried as an action in equity. The question remains, however, whether any fraud was proven sufficient to justify the cancellation of the bill of sale. The complaint charged substantially that the bill was signed by the plaintiff without knowledge, of its contents, relying-upon fraudulent representations as to its character made by Walter., and under circumstances excusing the plaintiff’s neglect to read it. The evidence of the plaintiff himself,' however, showed beyond question that he knew lie was signing a paper purporting to put the title of the property in Walter; but he insists that it was simply done so that it would appear [513] that Walter owned the goods, in order that he would have no trouble in packing and shipping them. In accordance with this testimony the court found neither fraudulent representations as to the character of the instrument by Walter, nor ignorance of its character by the plaintiff, but simply that plaintiff signed it with the intention of empowering Walter to pack and ship the property, that there was no consideration paid, and hence that the instrument was in fact simply a power of attorney. We have been unable .to follow the trial court to the conclusion reached. If without fraud or mistake of fact the plaintiff deliberately chose to execute an instrument transferring the title of his property to Walter, in trust for certain purposes, the court cannot set aside the instrument or convert it intb a power of attorney because Walter did not carry out his trust. A valid trust in personal property may be created by parol. 1 Perry, Trusts, § 86. If the title was placed in Walter simply in trust for certain purposes, doubtless Walter may be compelled to carry out his agreement, and the trust may be enforced under proper pleadings ; but no such contention was made by the pleadings. The only issue raised or tried was the issue of fraud, and on this the plaintiff has failed. This conclusion necessitates reversal of the judgment. We are not inclined, however, to direct judgment without giving the plaintiff opportunity to try the real question in the case. No reason is perceived why the question as to the creation of a trust in the property may not be tried out in this action, and the mandate will so provide. The judgment discharges the railway company from further liability, and the notice of appeal served upon the railway company as well as upon the plaintiff states that the appeal is taken from the whole judgment. No assignment of error, however, is made or argued upon this part of the judgment, hence, as to the railway company, the judgment will be affirmed. The railway company did not appear in this court, and the affirmance will be with [514] out costs, under tbe discretion given to tbis court by sec. 2949, Stats. 1898, in cases where tbe judgment is affirmed as to some parties and reversed as to others. By the Court. — That portion of tbe judgment discharging tbe defendant railway company from liability is affirmed, •without costs; tbe remainder of tbe judgment is reversed, with costs, and tbe cause remanded with directions to enter judgment dismissing tbe 'Complaint unless tbe trial court, upon notice and'application made within thirty days after service of notice of tbe remittitur herein, shall in its discretion, and upon such terms as may be just and equitable, grant leave to tbe plaintiff to amend bis complaint so as to raise tbe question of trust as indicated in tbe opinion, in which case a new trial shall be bad.