Carroll v. Fethers

• Decision Date: 14 March 1899
• Citation: 78 N.W. 604,102 Wis. 436
• Parties: CARROLL v. FETHERS ET AL.
• Court: Wisconsin Supreme Court

102 Wis. 436

78 N.W. 604

CARROLL

v.FETHERS ET AL.

Supreme Court of Wisconsin.

March 14, 1899.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Action by Phillip Carroll against Ogden H. Fethers, Malcolm G. Jeffris, and Charles L. Fifield. There was judgment for defendants, and plaintiff appeals. Affirmed.Joseph B. Doe, for appellant.

Fethers, Jeftris, Fifield & Mouat, for respondents.

CASSODAY, C. J.

This action was commenced March 24, 1891, to recover $5,550, alleged to have been money belonging to the plaintiff, and paid to the firm composed of the defendants, April 9, 1889, and by them “unlawfully and wrongfully converted and disposed of * * * to their own use,” and demanded judgment for that amount therefor as damages, with interest thereon from April 9, 1889. Issue being joined and trial had, the court, at the close of the trial, November 3, 1897, directed a verdict in favor of the defendants, and from the judgment entered thereon the plaintiff brings this appeal.

The case turns upon the question whether the fact that this plaintiff, in a former action against these defendants for the same money, waived the tort, and sought to recover the money upon an implied contract, is a bar to this action. The facts in regard to the two actions are evidenced by documents in the record, and are to the effect that for some years prior to April 9, 1889, there was an important litigation between Carroll, the plaintiff in this action, and one Little, and which came to this court, and is reported in 73 Wis. 52, 40 N. W. 582; that A. Hyatt Smith was the attorney of record for Carroll in that action; that the firm of the defendants were of counsel for Carroll; that, as a result of that litigation, Little, the defendant party, paid to the firm of the defendants, as such counsel, April 9, 1889, about $7,000; that the defendants took and retained out of that sum the amount of their disbursements and their charges, which are conceded to have been reasonable, and paid the balance to A. Hyatt Smith, who was Carroll's attorney of record; that September 29, 1890, the plaintiff commenced an action against the defendants for the recovery of $5,550 of the money so received by them April 9, 1889, and interest thereon from that date, and alleged in his complaint that on that day he demanded payment thereof from them, which payment they refused to make; that the defendants answered that complaint to the effect the facts stated, and that, after taking from the moneys so received their charges and disbursements, and moneys paid to or on behalf of Carroll, they paid the balance of the money so received by them to A. Hyatt Smith, as the attorney of record of Carroll, and alleged that Smith was a necessary party to the action, and prayed that he be made such party defendant; that December 15, 1890, the court ordered that the summons and complaint be amended by making A. Hyatt Smith a party defendant, and that upon the failure of the plaintiff, Carroll, to so amend, the action should stand dismissed; that the plaintiff failed to comply with such order, and so that action was dismissed, and the costs taxed, and judgment therefor entered thereon, in favor of the defendants accordingly; that, after the plaintiff had paid such judgment for costs, he commenced this action against these defendants, March 24, 1891, for the unlawful and wrongful conversion and disposal of such money,as stated; that April 9, 1891, the defendants answered similarly to their answer in the former action, and alleged the other facts stated, and that A. Hyatt Smith, the attorney of record in the Little suit, and to whom they paid such money, was a necessary party, and prayed that he be made such party; that April 16, 1891, the defendants noticed the cause for trial; that April 18, 1891, the court ordered that A. Hyatt Smith be made a party defendant; that the plaintiff appealed from that order, and the same was reversed April 12, 1892; that such reversal was claimed in this court on the ground that the controversy was whether the defendant had wrongfully converted the money; that “Smith would not be liable for the conversion of his co-defendants, nor would they be liable for any wrongful conversion by Smith, as they acted independently of each other”; that this court held that Smith was improperly made a party, because the case was not within the statute cited therein, but was an action “to recover damages for the unlawful conversion of personal property” (82 Wis. 69, 51 N. W. 1129); that “a wrongful conversion by more than one person is a several, as well as a joint, wrong, and the injured party may sue one or more of the wrongdoers without suing them all” (82 Wis. 70, 51 N. W. 1129); that, at the November term of the circuit court for 1892, the plaintiff obtained a change of venue to Walworth county by reason of the alleged prejudices of the judge; that the defendants noticed the cause for trial at the February term, 1893, and the October term, 1893; that at that term the cause was tried, and the jury disagreed; that the defendants noticed the cause for trial at the February term for 1894, when the plaintiff procured a continuance; that, upon an order on the plaintiff to show cause why the action should not be dismissed for want of prosecution, the same was dismissed, February 23, 1897, and a judgment was thereupon entered in favor of the defendants, dismissing the action, and for taxable costs; that such judgment, and order on which it was based, were set aside and vacated July 3, 1897; that the plaintiff for the first time after November, 1892, noticed the case for trial at the October term for 1897; that the cause was tried for a second time November 1, 1897; that upon that trial the defendants offered in evidence the records in the original action so brought by the plaintiff against these defendants, including the order requiring the plaintiff to make A. Hyatt Smith a party defendant, and the dismissal of that action for failure of the plaintiff to comply with that order; that such records were so offered for the purpose of showing that the plaintiff had elected to waive the tort and sue on an implied contract to recover the same money; that the plaintiff objected to the admission of such records upon the ground that such defense was affirmative, and had not been pleaded, and the court sustained such objection; that thereupon the defendants asked and obtained leave of the court to amend their answer by alleging the records in such former action so commenced September 29, 1890, and the...