Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

OCT

Patulski v. Bellmont Realty Co. 166 Wis. 188.

erty by deed from the Bellmont Realty Company. On July 3, 1914, she executed a warranty deed of this property to the Bellmont Realty Company, the consideration for which was expressed as one dollar and other good and valuable consideration. Subsequently and on December 13, 1915, she executed a quitclaim deed of the same premises to the Bellmont Realty Company, and the question is whether or not these deeds were valid and conveyed title to the Bellmont Realty Company. Upon this the trial court found:

"That from 1910 to May 17, 1916, defendant Bradshaw had from time to time made certain disbursements and advances to said Anna R. Bours relative to said business.

"That the defendant Bradshaw did not establish his contention of a claim and demand against said Anna R. Bours for services, advancements, and disbursements, or that he had settled with her for said sum, or that the said deed of July 3, 1914, was made in consideration of such indebtedness.

"On the other hand, the court finds that the said Anna R. Bours did not intend, by such deed, to convey the said premises to the said Bradshaw or the Bellmont Realty Company.

"The court further finds that the house upon the premises was built with the money of the deceased, and part of the cost of such building was paid for at the direction of the deceased by the said Bradshaw after the deed of July 3, 1914, and that the said house was erected as and for the homestead of said Anna R. Bours, and she did from the time of the alleged execution of said deed continue to keep the same as her homestead and believed that she was the owner of the same; that there was no consideration whatever passing from the Bellmont Realty Company to Anna R. Bours for the conveyance of the title of said property from her to it," and further found that the quitclaim deed had not been delivered.

Upon the findings of the court judgment was entered for plaintiffs quieting their title to the premises in question. From this judgment the defendants appeal.

For the appellants there was a brief by F. J. Jennings and Quarles, Spence & Quarles, all of Milwaukee, and oral argument by W. C. Quarles.

Patulski v. Bellmont Realty Co. 166 Wis. 188.

For the respondents there was a brief by Bloodgood, Kemper & Bloodgood, attorneys, and Emmet Horan, Jr., of counsel, all of Milwaukee, and oral argument by Mr. Horan.

ROSENBERRY, J. Appellants contend that the judgment should be reversed (1) because the findings set out are against the clear preponderance of the evidence, and (2) because the court erred in rejecting testimony offered by the defendants and in admitting evidence offered by plaintiffs.

Under the rule laid down in Armstrong v. Morrow, ante, p. 1, 163 N. W. 179, when the plaintiffs established, as it is admitted they did, the fact of the confidential relationship between the deceased Anna R. Bours and the defendant Bradshaw, her agent and adviser, they established a prima facie case, and it was then incumbent upon the defendant Bradshaw to show affirmatively that no advantage was taken of the confidential relationship which existed between himself and the deceased and that in making the deeds of the property in question the deceased acted with full knowledge, upon proper advice, that no deception was practiced, and that the consideration was adequate.

The evidence is not stated in detail. To do so would extend this opinion to great length. Such statements are of no value in cases such as this, except as they may convince counsel that the matter has been fully considered. Each case must rest upon its peculiar facts. The facts are never alike in two cases. Long statements of the facts are quite as likely to lead to confusion as they are to lead to certainty in the application of general principles in subsequent cases. This court, realizing the burden cast upon the profession by unnecessarily long opinions, endeavors to conform to the demand for shorter opinions. All cases are thoroughly and carefully considered, and the brevity of the opinion is not evidence to the contrary. We are of the opinion that the trial court was right in its conclusion that the defendant

Patulski v. Bellmont Realty Co. 166 Wis. 188.

Bradshaw failed to establish his contention that he had a just claim and demand against the deceased, that he had settled with her for said sum, and that the deed of July 3, 1914, was given in consideration of such indebtedness. We are further of the opinion that the finding of the court to the effect that the quitclaim deed of December 13, 1915, was not delivered to the defendants or either of them with any purpose on the part of said deceased to convey title to the property described therein, is in accordance with the clear preponderance of the evidence.

2. The court excluded evidence offered by appellants, on the ground that it related to transactions between the deceased and the witness Bradshaw and that the witness was therefore incompetent under the provisions of sec. 4069, Stats. We have carefully examined the record, particularly the parts called to our attention in briefs of counsel. It appears that the witness Bradshaw was examined as an adverse party under sec. 4068; that upon his examination he was asked by respondents to testify as to many transactions which he had with third persons relating to the business which he did for the deceased, but it does not appear that he was examined as to transactions had directly with the de ceased, testimony as to which, when offered by defendants, was excluded by the trial court. The trial court properly excluded the testimony offered.

A witness was permitted to testify to conversation with the deceased when Bradshaw was not present. While this should not have been permitted, nevertheless its admission does not constitute reversible error where the trial is before the court without a jury, as in this case, and there is competent evidence to support the court's findings, as there is here.

By the Court.-Judgment affirmed.

Koeffler v. Koeffler, 166 Wis. 193.

KOEFFLER, Respondent, vs. KOEFFLER, imp., Appellant.

October 5-October 23, 1917.

Trusts and trustees: Testamentary trust: Termination.

The decision of the trial court that a certain testamentary trust may now properly be terminated, the trustee relieved, and the trust funds and estate be turned over to the cestui que trust, is held to be supported by the evidence.

APPEAL from a judgment of the circuit court for Milwaukee county: LAWRENCE W. HALSEY, Circuit Judge. Affirmed.

Charles A. Koeffler, Jr., of Milwaukee, as trustee, appellant in pro. per.

For the respondent there was a brief by Upham, Black, Russell & Richardson of Milwaukee, and oral argument by Wm. E. Black.

ESCHWEILER, J. The only question raised on this appeal is whether or not there is sufficient testimony in the record to support the conclusion of the trial court that the time has now arrived at which that certain trust created in favor of the plaintiff, Hugo Koeffler, by the last will and testament of Charles Koeffler, deceased, who was the father of plaintiff, Hugo Koeffler, and the defendants, Charles A. Koeffler, Jr., Louis Luebben, and Hermine Baumgarten, could be properly terminated, the trustee relieved, and the trust funds and estate turned over to said plaintiff.

It is deemed unnecessary to recite the terms of the trust created and concerned here or the testimony; it suffices to say that we are satisfied that under the evidence in this case the court below was warranted in deciding that the plaintiff is now entitled to have turned over to him said trust funds, the trust estate conveyed and assigned to him, and that the defendant Charles A. Koeffler, Jr., as trustee may thereupon be released and discharged.

By the Court.-Judgment of the circuit court affirmed.

VOL. 166-13

Morse v. Modern Woodmen of America, 166 Wis. 194.

MORSE, Respondent, vs. MODERN WOODMEN OF AMERICA,

Appellant.

October 5-October 23, 1917.

Corporations: Liability for torts of agents: Exemption of benevolent association: Fraternal insurance society: Libel: Joint wrongdoers: Master and servant: Separate actions: Judgment in one not a bar until satisfied: Jurisdiction: Evidence: Competency: Prejudicial error: Excessive damages: Appeal: New trial.

1. The Modern Woodmen of America, a fraternal insurance corporation conducted on the assessment plan and having, besides a benefit fund out of which death claims are to be paid, a general fund which may be used for other purposes, is not a purely benevolent association and its funds are not all trust funds in such a sense that it should be exempt from the ordinary liability of a corporation for the torts of its employees or agents.

2. A corporation is liable for the torts of its agents within the scope of their employment and in furtherance of the corporate business, and this includes libel.

3. A libel may be the joint act of several persons, who may in such case be sued jointly or separately at the plaintiff's election.

4. Where two are sued separately for libel, in neither action does the liability of the other furnish any defense or mitigation of damages; both actions may be prosecuted to judgment, but there can be but one satisfaction; when one judgment is satisfied it becomes a bar to the other action.

5. A master and servant acting together in publishing a libel are joint publishers thereof and may be sued jointly or severally; and a judgment against one is not a bar to the action against the other until it is satisfied.

6. The fact, in such a case, that the servant or agent circulated the libel in a part only of the territory in which it was circulated, and the fact that in a separate action against the agent plaintiff sought only to recover damages for the circulation in such part, are immaterial in an action against the principal. 7. Where, in such case, plaintiff recovered only nominal damages in the action against the agent, the payment of the amount of the verdict into court could not of itself operate to bar the action against the principal, especially before the time for appeal had expired.

8. A plaintiff who brings separate actions against several joint wrongdoers has the right to choose which judgment he will accept and satisfy.

9. Where the principal authorized or ratified the act of an agent in

« ΠροηγούμενηΣυνέχεια »