Brazeau v. McBride

BaeNes, J. There is no claim on the part of any witness that at the time the transfers took place the defendant had any actual knowledge that the Pipp notes were in existence, or that he made any promise to pay these particular notes. The court must have permitted the answer of the jury to the second question in the special verdict to stand on the theory that Muehrke was McBride’s agent, and that, Muehrke having been informed that it was Bruhn’s intention to'have the mortgages aggregating $3,050 and the Pipp notes aggregating $450 paid, his knowledge was the knowledge of his principal and the obligation assumed by defendant was in reality to pay the two outstanding mortgages and the Pipp notes. We think this.conclusion is untenable for two reasons. In the first place the evidence shows that Muehrke was Bruhn’s agent, and we find nothing in the evidence to indicate that Muehrke represented McBride, except the fact that after the transaction was concluded McBride paid one half of Muehrke’s commission although under no obligation to. do so. At best Muehrke was no more than a broker or go-between, and the knowledge referred to could hardly be charged to McBride so long as it was not communicated to him. [209] In tbe next place, we reach tbe same result if we consider Muehrke to be tbe agent of McBride and not of Bruhn. Tbe latter knew that tbe information was not to be communicated to McBride. On the contrary it was intended to be suppressed. Bruhn says tbe reason why he drew tbe deed as it was drawn was because Muehrke bad cautioned him that nothing must be said to McBride about tbe Pipp notes. It is not tbe law that one. dealing with tbe agent of another can enter into an agreement with tbe agent by which certain facts are to be suppressed from tbe principal and then say that tbe principal is chargeable with knowledge of these facts anyhow because his agent knew them. By no fair construction of the language quoted from the deed can it be said to contain an agreement to pay the Pipp notes. Instead, we find a specific provision that one mortgage for $2,500 and another for $1,000 are assumed and agreed to be paid. We can see no theory on which suit could be maintained on these unsecured Pipp notes against McBride except on a promise to pay them, and we are unable to find any promise. We do not see how the answer to the first question in the verdict affects the question. If defendant knew that the second mortgage was for $550 instead of $1,000, as an honest man he should know that he would owe Bruhn $450 after the mortgages were paid. But this knowledge could not make a contract whereby defendant agreed to pay notes he never heard of and notes on which more than $450 was due. It is very certain that as part of the consideration for the farm the defendant expected and agreed to pay indebtedness of Bruhn to the amount of $3,500 and Bruhn expected that indebtedness of his to this amount would in fact be paid. The form of the indebtedness assumed could not be very material. ' -When McBride paid the mortgages aggregating $3,050 he paid only a part of the consideration which it was in fact intended by himself and Bruhn that he should pay. In equity and good conscience defendant owes Bruhn $450, for [210] which Bruhn can maintain an action as for money had and received. Had Bruhn assigned his cause of action to the plaintiff the case would present no difficulty. But we do not see how any particular creditor of Bruhn could sue defendant for $450 without showing a contract on his part to pay the debt. The fatal weakness in plaintiffs case is that it fails to show such an agreement on defendant’s part or else an assignment to the plaintiff of Bruhn’s cause of action against the defendant: Bruhn testified on the trial that it was his intention that the Pipp notes should be paid by defendant. So we have this; situation: Defendant owes Bruhn $450; Bruhn owes the plaintiff, who is assignee of the Pipp notes, the amount there-' of, and Bruhn and the plaintiff both desire that defendant' shall pay the money due from him to the plaintiff. There is.' no need of any further litigation to settle the controversy, because there is no controversy left. Defendant was well with-; in his rights in refusing to pay the Pipp notes. Had he done so, he might subject himself to a suit by Bruhn to recover the $450. Besides, more than three years’ interest had accrued on them when the trade was made with Bruhn. Bruhn’s .right against the defendant is limited to a recovery of $450 with interest from September 9, 1913, the time when the trade was made. The judgment which was entered on July 18, 1914, included interest to the amount of $95.32. The interest on the Bruhn cause of action to this date would amount to only $23.18. We cannot say that there was an equitable assignment of the Bruhn cause of action to the plaintiff and that Bruhn has estopped himself from asserting the contrary and permit'judgment to stand, because the recovery would be too large and because the defendant was strictly within his rights in defending against the causes of action brought against him on the Pipp notes, and being entitled to prevail he should not be mulcted in costs, and because, Bruhn not being a party to this action, the judgment rendered therein would not be binding on him. We see no [211] reason, however, why litigation over this transaction should be further prolonged. The case has been fully tried and there is practically no dispute about the essential facts which determine the rights of the parties, and there is no reason why substantial justice may not be meted out to every one by making a final disposition of the case. Sec. 2405to_, Stats., authorizes such procedure. The judgment appealed from must be reversed. The defendant is entitled to his taxable costs in this court and in the circuit court. If within thirty days from the date of filing the remittitur in the circuit court the plaintiff shall file with the clerk of said court an assignment to him of the Bruhn cause of action against the defendant in due form of law, the plaintiff is permitted to take judgment against the defendant for the sum of $450 with interest at six per cent, from September 9, 1913, less the costs taxed in defendant’s favor in this court and in.the circuit court. Notice of application for such judgment must be given to defendant’s attorneys and an opportunity given them to object to the sufficiency of the assignment. If the plaintiff fails to file the assignment as herein provided for, then on proper proof to that effect judgment must be entered dismissing the complaint with costs. By the Gourt. — -Judgment reversed, -and cause remanded for further proceedings as indicated in the opinion.