Johnson v. Bank of Wisconsin

Mabshall, J. Was the note of June 13, 1912, delivered to respondent, unconditionally, accompanied by a repledge of tbe collateral to the old note for the payment of the new one and all other indebtedness of the deceased to respondent? There was considerable other indebtedness, including interest on the old note. The transaction, in tbe main, was between Mr. Corry and Mr. Boyd, the respondent’s president. The-renewal note, so called, contained a recital that collateral had been deposited as security for its payment, followed by tbe words, “Collateral as p'er list attached, ■ also on geni, a/c.” Mr. Boyd was permitted, without objection, to testify that tbe added words meant that tbe pledge was to secure any indebtedness of the pledgor to tbe bank, and to testify, largely under objection, to the entire transaction between him on be-' — 373 — half of the bank and Mr. Corry. The testimony, in the whole, tended quite strongly to support the claim of respondent that it was entitled to apply the proceeds of the collateral to the indebtedness on the particular note and’ any indebtedness it held against Mr. Corry at the time of his death. The court so found in the first and second findings, summarized in the statement. Such findings are challenged as contrary to the evidence. The main ground upon which counsel for appellant challenge the findings, as above indicated, is that the testimony of Mr. Boyd, which was objected to, was incompetent and that without it, they are not supported by the evidence. True, if Mr. Boyd’s evidence, so far as objected to, was incompetent under sec. 4069, Stats., and was vital to the findings, they cannot be sustained. It is not entirely clear that it was vital, or, if incompetent, the trial court gave controlling weight thereto in coming to the conclusions. Improper evidence taken in a court case under objection, is to be presumed not .to have been given weight unless the contrary clearly appears. Harrigan v. Gilchrist, 121 Wis. 127, 312, 314, 99 N. W. 909. But, assuming that the evidence was vital and so considered, no error was committed because of appellant having so opened the door as to render it admissible. Appellant’s counsel made the broadest kind of an offer to go into, with Mr. Boyd, the whole transaction, and his offer was accepted. They then interrogated the witness in regard to some communications and transactions between such witness and Mr. Corry. All the testimony which was objected to was directed to parts of the whole matter which counsel consented to have laid before the court. True, such testimony went to many details not referred to in that drawn out by counsel for appellant; but all related to the matter, in its entirety, and so was clearly competent. Counsel seem to think that they opened the door by the offer and examination only as to the particular features of — 374 — the whole transaction which they interrogated the witness in respect to; but such is not the statute. When the door is once opened for one to testify to a communication or transaction had by him personally with a deceased person, the witness may testify, not only to the facts of such communication or transaction, first brought out, but to all “matters to which” the testimony in the opening “relates.” Such is the plain meaning of the statute. Treating, as it seems we must, all the testimony of Mr. Boyd as having been properly received and considered, the finding of unconditional delivery of the renewal note, re-pledging of the collateral, and sale and application of the proceeds thereof to the particular and other indebtedness, leaving a large balance due respondent, in all respects according to the terms of the pledge, is supported by the evidence. It does not seem to be required that we should state, in detail, what Mr. Boyd’s evidence was. The effect of it, in connection with the other evidence, taken at its face value, seems to be conceded to form a pretty sound basis for the findings. There are some features of the case bearing on the credibility of Mr. Boyd’s evidence, but nothing of a conclusive character, or that was not explained to the satisfaction of the court be-, low with reasonable ground therefor. The controversy in respect to such part of the proceeds of the collateral as the $1,148.01, mentioned in the last finding of fact, bears to the entire Corry indebtedness to respondent, as of the time such collateral was realized on, and-the facts in respect thereto do not, perhaps, as clearly appear from the statement as is necessary to a full understanding of the matter. Such controversy is covered by the last finding of fact. That is said to be contrary to law and unsupportéd by the evidence. At the time of the decease of Mr. Oorry, he had some assets of doubtful value. The administrator seems to have regarded the same as not much better than mere possibilities — 375 — without use, in connection therewith, of a considerable sum of money, and administering the property otherwise than as an administrator could well do. In that situation, with approval of the court, a corporation was formed to take over and handle such property and procure the necessary money to efficiently do it. The name of the corporation was “Linden Hill Land Company.” The success of the venture and the interests of the estate were largely dependent upon financial assistance by respondent. In due course, respondent,, with the approval of the court, arranged to loan the estate agency, said Land Company, $7,500, said company, as part consideration, agreeing to pay the former the interest due it on Oorry indebtedness, amounting to $1,148.01. The arrangement in respect to the matter was presented to the court, and specially authorized and directed to be carried out as advantageous to the estate. ' Pursuant to the order in respect to the matter, respondent, in writing, assigned its claim against the estate -for interest to the Land Company, with the collateral held by the bank, in the proportion which the indebtedness assigned bore to the entire Corry indebtedness so held, “to continue, as heretofore, proportionally and pro rata, security for the payment of said interest . . . until the same shall be fully paid by the Corry estate.” Shortly after the making of such assignment, the Land Company, in form, transferred its rights thereunder to the administrator of such estate. In the order of the court, the assignment to the Land Company was.designated as “assignment and receipt for interest due Bank of Wisconsin Considering all the circumstances in relation to the transaction, the trial court held that the purpose thereof was to have the corporation hold the indebtedness assigned as an outstanding claim against the Oorry estate, and to have an interest in the collateral for its protection, — not that of the estate or its general creditors, — such interest to lapse upon the' assigned indebtedness being paid or otherwise extinguished — 376 — by sucb estate; and that when the estate acquired sucb indebtedness, it must bave acted in harmony witb tbe spirit of ■the whole deál. In that view tbe finding was made that tbe assignment by tbe bank to tbe Land Compaúy, and tbe satisfaction of tbe latter by tbe subsequent transfer of tbe indebtedness to tbe Corry estate, operated to extinguish it and remove tbe incumbrance placed on tbe collateral for tbe protection of tbe Land Company; that to bold otherwise and to permit tbe estate, which was not intended to be protected by tbe collateral, to be so protected, would be inequitable and sanction tbe use of tbe assignment for a purpose not intended and_ in sucb manner as to perpetrate a fraud, since tbe entire proceeds of tbe collateral come far short of covering tbe bank’s indebtedness. That evidently is tbe logic underlying tbe court’s finding. It is easily read out of tbe language used. Tbe finding closes witb tbe words, “Under tbe facts of this case, it would be inequitable to permit tbe plaintiff to enforce its claim against defendant or against any portion of tbe collateral security in tbe defendant’s bands, until tbe defendant has been fully paid its claim against tbe deceased.” What tbe meaning, intent, and effect was of tbe two papers, is not entirely clear. There are many minor circumstances appearing in tbe evidence which tend to reinforce tbe major features referred to, in support of tbe trial court’s view. Tbe assignment by tbe bank to tbe Land Company, in view of all tbe facts, is somewhat ambiguous. Tbe feature that tbe collateral should remain'proportionally as security for payment of tbe assigned interest until sucb interest should be fully paid by tbe Corry estate, is repugnant to tbe idea that sucb estate could, instead of paying tbe claim, buy it and recoup out of tbe collateral. It seems tbe idea was that it could only acquire sucb claim, in harmony witb tbe whole transaction, by paying it or doing something equivalent thereto as regards tbe collateral. When tbe bank loaned tbe $7,500 to tbe Land Company, witb tbe understanding that its — 377 — interest claim should be paid, it could not have thought that it might be acquired by the Corry estate and held as a claim upon the collateral. On the whole, we incline to the view of the trial court, embodied in the finding, that the effect of what was done was to extinguish the indebtedness which was assigned to the Land Company. That is in harmony with what the county court, the administrator of the estate, and the officers of the bank evidently supposed would be done when the loan of $7,500 was arranged for. The foregoing, it seems, covers all features of the case which merit attention. By the Court. — The judgment is affirmed. Siebeceee, J., took no part.