Jones v. Citizens' Savings & Trust Co.

Eschweiler, J. The appealing defendants in this action contend substantially as follows: (1) The court below should not have entertained jurisdiction of this action because, it being upon a contract sought to be enforced after the death of one of the parties thereto, Joseph H. Glauber, the remedy, so far as his estate was concerned, must be confined to the filing of a claim in the probate proceedings in Cleveland. (2) That, being in the nature of a claim against the estate of Joseph H. Glauber and the defendant Maurice H. Glauber, it was such a joint liability that, the court below having under the first objection no jurisdiction as to the estate of the deceased partner, it had no jurisdiction as to the other defendant upon such joint obligation. (3 ) That the letters purporting to show the contract and written by the deceased J. H. Glauber were inadmissible under sec. 4069, Stats., because such constituted a transaction with a deceased person. (4) That the widow of the deceased, who testified on behalf of plaintiffs to the signature of the deceased J. H. Glauber to those letters, was an incompetent witness thereto. (5) That under the evidence the answer of the jury to the second question of the special verdict should have been sustained. Such authorities as Wisdom v. Wisdom, 155 Wis. 434, 437, 145 N. W. 126; Lehman v. Weiner, 167 Wis. 428, 167 N. W. 806, and many others in those cases- cited holding that claims against a deceased person should be presented to the court administering his estate, all recognize the further rule that when the remedy in that court is not complete and full the concurrent jurisdiction of the circuit court may be invoked. Meyer v. Garthwaite, 92 Wis. 571, 573, 66 N. [656] W. 704; Mangan v. Shea, 158 Wis. 619, 625, 149 N. W. 378; Eisentraut v. Cornelius, 134 Wis. 532, 537, 115 N. W. 142; Lindemann v. Rusk, 125 Wis. 210, 226, 104 N. W. 119; Burnham v. Norton, 100 Wis. 8, 12, 75 N. W. 304. The situation here warranted an appeal to the circuit court rather than to either a county court in Ohio or one in this state having ancillary jurisdiction. Here it was desired to impound by garnishment the fund that was owing from the Wisconsin corporation, Hoffmann-Billings Company. It was desired to proceed against the estate of the deceased, J. H. Glauber, the surviving partner, M. H. Glauber, and the Glauber Brass Manufacturing Company as continued after the death of J. H. Glauber. Furthermore, any objection that some other court had primary jurisdiction was completely waived by all these defendants appearing generally in this action and raising no such objection by special plea or in their answers. They also all joined in a counterclaim based upon the alleged retainer of the plaintiffs during the lifetime of J. H. Glauber by the Glauber Brass Manufacturing Company. When they thus voluntarily use the jurisdiction of a court for the purpose of seeking to have it award them an asset, they ought not to be heard in successful lament when it gives .them a liability. This disposition of the question of jurisdiction renders it unnecessary to consider the second alleged error. The letters between the parties, as appearing in the statement of facts, constituted the contract between them as much as though what is therein said was finally embodied in one writing sighed by both. Such a written contract is not the “transaction or communication” referred to in sec. 4069, Stats., relied upon by appellants in their third assignment of error. The writings are the best evidence of the contract and they speak for themselves' and needed and permitted no oral evidence from the writers thereof to establish them as the contract. The lips of T. H. Glauber, if [657] living, would have been just as much sealed, if called as a witness to testify either in confirmation or impeachment of the contract as expressed in the documents, as they were sealed by death at the time of the trial. There was nothing, therefore, offered which was subject to contradiction by J. H. Glauber were he living. The situation presented was neither within the letter nor spirit of the excluding statute in question. The fourth objection was not well taken. The widow of J. H. Glauber might properly identify the signature of her husband. It in no sense involved any.question as to the terms of the contract or as to the facts surrounding the writing of the particular letters. It also was not such “transaction or communication” as is within the purview of sec. 4069, Stats., supra. Daniels v. Foster, 26 Wis. 686, 693; Beem v. Kimberly, 72 Wis. 343, 363, 39 N. W. 542. Under sec. 4192, Stats., these letters would themselves have been presumptive evidence that they had been signed by the person whose signature appeared thereon, except that such presumption does not extend to a document purporting to have been signed by some one deceased at the time of the trial. The admissions in the answer of a retainer, the assertion that there was an employment which was relied upon by defendants as the basis for their counterclaim,' the letters written by plaintiffs and produced by defendants upon notice, and the cross-references by dates and subject matter in those letters and the letters purporting to have been signed by J. H. Glauber, together with other evidence in the case, make it clear beyond peradventúre that these letters were what they purported to be and the evidence of the widow more formal than substantial. On the fifth and last point urged by appellants we are satisfied from an inspection of the letters of January and February, 1911, set forth in the statement of facts, that there was a distinct proposal by plaintiffs, understood and [658] accepted by defendants, that there was to be paid a regular scale of prices for services in the litigation, and in case of a settlement before or after the suggested litigation there was then to be paid, over and above such agreed basis for charges, an additional sum equal to twenty per cent, of any sum paid by way of settlement, as a compensation for obtaining such a settlement. The parties so agreed and must be bound thereby. Furthermore, the defendants made efficient use of such claim by obtaining on account thereof an increase of $2,500 from the Hoffmann-Billings Company in the final settlement. Both parties having moved for a directed verdict, the court might well have, under sec. 2857a, Stats., ordered judgment for plaintiff without submitting to the jury the questions which it did. There was no error in the court’s changing the answer of the jury to the second question and finding as a matter of law that the contract was as contended by plaintiffs, and particularly so when the jury, upon the evidence, by their answer to the fourth question had determined that the contrary view asserted by the defendants was not the correct one. The court was clearly right in directing judgment for the plaintiffs as it did. By the Court. — Judgment affirmed. Kerwin and Rosenberry, JJ., took no part.