Paulus v. O'Neill

Kerwin, J. It is established by tbe verdict on the trial below that John Paulus was tbe owner of tbe $1,000 note at tbe time of bis death, that tbe same was unpaid, and came into tbe possession of bis widow, Ellen Paulus, shortly after bis death; that she surrendered it to Brown in consideration of tbe $900 note payable to her; that such surrender was tbe only consideration received by Brown for tbe $900 note; and that on October 13, 1903, Brown paid to Ellen Paulus $350 on tbe $900 note. Erom tbe findings of tbe jury it appears that Ellen Paulus intended by tbe exchange of tbe $1,000 note for tbe $900 note to appropriate to her own use tbe $1,000 note belonging to tbe Paulus estate. Tbe main question upon this appeal is whether Brown participated in such fraudulent transaction and knew, or ought to have known,, that Ellen Paulus was not tbe owner of tbe note. In talking with Mr. Sturdevant in January after tbe death of John Paulus, Brown exhibited tbe note and claimed it bad for tbe money be borrowed to put on tbe mill, and be said it been paid. Mr. Sturdevant asked him if tbe note was given was, and that tbe administrator wanted him to pay tbe $1,000 [72] over again, and said: “If I have my note, doesn’t that show I paid it ? Ain’t I all right if I have my note ?” To which Mr. Sturdevant replied: “I don’t know as to that. The note is pretty good evidence it is paid, but who did you pay it to?” To which Brown replied: “What difference does that make so long as I have my note ?” It also appears from the evidence that Mr. Sturdevant asked him if he paid it to Mr. Paulus, and Brown replied: “If I have my note, ain’t that all right ?” but did not state to whom he paid it. The testimony also shows that he was given to understand at this time that the amount of the note would have to be paid to the estate, and that he said, in effect, he could pay it again if he had to. Under this evidence mainly, in connection with the facts established by the verdict, the court below found fraudulent participation on the part of Brown as a matter of law. The appellant insisted that the court erred in indulging in a presumption of fraud, and that if there was any evidence in the case sufficient to raise the question it was a question of fact and should have been submitted to the jury. It is well settled that fraud can be established only by evidence that is clear and satisfactory. Bowe v. Gage, 127 Wis. 245, 106 N. W. 1074; Shaw v. Gilbert, 111 Wis. 165, 86 N. W. 188; F. Dohmen Co. v. Niagara F. Ins. Co. 96 Wis. 38, 71 N. W. 69. We cannot find that there is such clear and satisfactory-evidence as would justify'the court below in holding that fraud upon the part of Brown was established as a matter of law and therefore the question should have been submitted to the jury. By the Court. — That part of the judgment appealed from is reversed, with costs, and the action remanded for a new-trial upon the counterclaim.