Bergenthal v. Friebrantz

• Decision Date: 07 January 1880
• Citation: 48 Wis. 435,4 N.W. 89
• Parties: FRANCIS BERGENTHAL, RESPONDENT, v. ALBERT FRIEBRANTZ, APPELLANT.
• Court: Wisconsin Supreme Court

48 Wis. 435

4 N.W. 89

FRANCIS BERGENTHAL, RESPONDENT,

v.ALBERT FRIEBRANTZ, APPELLANT.

Supreme Court of Wisconsin.

Filed January 7, 1880.

Appeal from Milwaukee county court.

Action to recover $300 alleged to have been paid to the defendant by one William Bergenthal, the agent of the plaintiff, for the plaintiff, through a mistake of fact arising from a misrepresentation of the defendant.

It is alleged, in the complaint, that in 1875 the plaintiff was in Europe, and William Bergenthal, his brother, had in his absence the general charge and management of his business in Milwaukee; that, while so acting for the plaintiff, the defendant stated and represented to William that the plaintiff was indebted to him in the sum of $300, on account of an alleged transaction for the purchase or sale of salt theretofore had between them, and demanded that sum of William as the agent of the plaintiff; that William had no knowledge of the transaction, but, relying upon the truth of the defendant's statement, paid the defendant, for the plaintiff, the money demanded; that the plaintiff was not indebted to the defendant in any sum; that the money was paid by William through a mistake as to the fact of such indebtedness, and that repayment of the sum so paid has been duly demanded of the defendant.

The answer alleges that at the time mentioned in the complaint the plaintiff and William Bergenthal were partners engaged in the business of distilling in Milwaukee; that their distillery had been theretofore seized by the United States for non-payment of some tax or assessment upon it of over $5,000, and was advertised to be sold; that at the time and place appointed for the sale of the distillery the defendant attended, intending to bid therefor $4,000, and prepared to pay the amount of his bid; that thereupon, after some negotiations, William Bergenthal offered the defendant $300 if he would not bid on the property. The defendant accepted the offer, and the money was then and there paid to him by William, which is the same money sued for in this action. And further, that the distillery was offered for sale at public auction by the proper officer; that the defendant did not bid, but the United States bid therefor $2,000, and a brother of the plaintiff bid $2,001, whereupon the property was declared sold to the latter.

It is also alleged in the answer that the plaintiff is indebted to the defendant in the sum of $300 on account of an executory contract made in 1865 for the sale and purchase of a quantity of salt, which contract the plaintiff failed to perform.

Except as above, the answer is a general denial.

It appeared by the evidence given on the trial that the plaintiff's distillery was seized in 1875 and sold by the United States for non-payment of a tax or assessment upon it of $4,500; that at the sale there were but two bids, one in behalf of the United States of $2,000, and the other by a brother of the plaintiff of $2,001; that the defendant was present at the sale but made no bid, and William Bergenthal paid him the $300 in controversy immediately after the sale. As to whether the $300 was paid to the defendant on the salt transaction, or in consideration that he would not bid on the distillery, the testimony is conflicting.

The plaintiff testified that he was not indebted to the defendant in 1875, or at any other time. Also, that in 1860 or 1861 he agreed to sell defendant 200 barrels of salt at a stipulated price, provided he had the same in his warehouse in Winona; but it turned out that he had none, his agent having sold all the salt the plaintiff previously had there. He further testified that after making such conditioned agreement the price of salt advanced.

The defendant testified that the contract for the sale and purchase of the salt was unconditional, and that after his failure to deliver the salt the plaintiff promised to pay him the difference between the contract and market price thereof, but never paid it. He denied that the $300 was paid him on account of the salt transaction, but testified that it was the agreed consideration for not bidding on the distillery.

The testimony of William Bergenthal, as to the circumstancesunder which he paid the defendant the $300, (referring to the time the distillery was sold,) is as follows:

“Don't know how many bids; heard two--United States and my brother. Don't know that I heard more. Don't know what all the people came there for. Saw defendant and had conversation with him on that day. Defendant stood there, and when he saw me he said, ‘Now I have a chance and I am going to get even with your brother,’ and he had been looking for that. Before the distillery we were sitting on a bench. Had been looking for that chance last ten years. I says, ‘What is it?’ He says, ‘He owes me $300 for a salt transaction in Winona.’ I says, ‘How long ago?’ He says, ‘About 13 years ago.’ I said, ‘Why didn't you see him; he has been here all the time?’ He said, ‘Well, he would not, but now was the time to get even with him.’ I went back and told Lindwurm this, and Lindwurm said he didn't believe that. I said, ‘I will go and ask him again, and if he says he owes it to him I will pay it.’ Went and asked defendant if it was so; that if, coming from my brother in a right way, I will give you that. ‘No,’ he said, ‘I want $500; the interest amounted up to that.’ I said, ‘I will give you that if you take the $300.’ He says, ‘All right,’ and I gave it to him. Had no check with him--will give the money when we get home; and stepped in the saloon at Roden place, and brother August wrote out the check made to his order, and I signed it.”

The foregoing is taken from the printed abstract, which is believed to be substantially correct.

Concerning the alleged indebtedness of the plaintiff to the defendant and in answer to the question, “Did he ask you to pay it?” the same witness testified as follows: “No, not in those words; said he was going to get even with my brother on account of that salt transaction for $300; looking for a chance, and now was a chance. Asked why he did not sue him when he was here; said he wouldn't sue him. I said if he owed you fair and square I will pay you $300. He asked interest. I said, ‘No; if you want $300 I will give it to you.’ * * * He said interest about $200, and wanted $500. * * * Brother authorized me to pay his debts before he left.” There was other testimony of similar import.

A motion for a nonsuit was denied. The jury returned a verdict for the plaintiff for the amount of his claim. The court denied the defendant's motion for a new trial, and rendered judgment pursuant to the verdict. The defendant has appealed from the judgment.Murphy & Goodwin, for respondent.

Orton & Frankenberger, for appellant.

LYON J.

Return was made on the present appeal before a proper bill of exceptions had been settled, and on motion of counsel for the appellant, by order of this court, the record was remitted to the county court for the purpose of obtaining a further return. The object of the order was to have the bill of...