DeFiance Mach. Works v. Gill
| Decision Date | 13 January 1920 |
| Citation | 170 Wis. 477,175 N.W. 940 |
| Parties | DEFIANCE MACH. WORKS v. GILL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.
Action by the Defiance Machine Works against Thomas H. Gill in the civil court of Milwaukee. Judgment for plaintiff, and defendant appealed to the circuit court, and while the cause was there pending defendant moved that in event the circuit court should deny defendant's motion for reversal of judgment it should order the civil court of Milwaukee to grant a new trial. The defendant has appealed separately from a judgment affirming the judgment of the civil court and from an order denying such motion. Judgment and order affirmed.
This action was begun in the civil court of Milwaukee county against the defendant as indorser of four certain promissory notes, all dated March 14, 1914, each for the sum of $427.50, executed by the Mobile Hoe Company to plaintiff. At the foot of the usual promise to pay found in ordinary promissory notes occurs this recital:
The answer of the defendant admits the execution of the notes by the Mobile Hoe Company, admits that the defendant indorsed said notes, admits their maturity as alleged in the complaint, denies any knowledge or information sufficient to form a belief as to whether plaintiff is still the lawful owner and holder thereof, and denies each and every other allegation of the complaint.
At the trial the notes were introduced in evidence and testimony given to the effect that no part of the principal or interest thereof has been paid. The defendant objected to the receipt of the notes in evidence because “incompetent, irrelevant, and immaterial, and particularly as it appears upon the face of these notes that they are conditional bills of sale, and the plaintiff has surrendered its right to make claim to the defendant by reason of losing its security before the commencement of this action.” Judgment was rendered by the civil court against the defendant for the full amount of the notes on March 17, 1917. Defendant appealed to the circuit court. While the case was pending in the circuit court, to wit, January 17, 1919, and before decision thereon, defendant served upon plaintiff's attorneys notice of a motion that, in the event the circuit court shall deny the defendant's motion for a reversal of the judgment of the civil court, then the defendant will request said court to order that the civil court of Milwaukee county shall grant a new trial in said action, upon such terms as may seem just to said civil court, to permit said defendant to offer proof that the plaintiff has parted with its right, title, and interest to the machinery for which the notes were given, and thereby prevented the defendant to be subrogated to the rights of plaintiff by reason of the conditional bill of sale referred to in the complaint. Said motion was based upon the affidavit of defendant's attorney, in which it was stated, upon information and belief, that since the rendition of the judgment in this action, by virtue of an execution against the goods and chattels of the Mobile Hoe Company, the sheriff of Mobile county, Ala., had seized and sold the machinery the purchase price for which the notes in this action were given. Affiant further says in the affidavit, upon information and belief, that at the time of the purchase of the machinery by the Mobile Hoe Company from the Defiance Machine Works there was executed by and between the Mobile Hoe Company and the Defiance Machine Works a conditional bill of sale by the terms and conditions of which the title remained in the said Defiance Machine Works, and which was the situation when the defendant herein indorsed the notes referred to in this action; that by reason of the seizure and sale upon the said execution by the sheriff of Mobile county, Ala., the Defiance Machine Works has been for all time prevented from transferring the title and possession of the machinery referred to in this action to the defendantThomas H. Gill, as a condition of the payment of the judgment by the said Gill. This motion was considered by the circuit court with the merits of the case. The circuit court affirmed the judgment of the civil court and denied this motion. Separate appeals were taken from the judgment of the circuit court affirming the judgment of the civil court and from the order denying the motion for a new trial.
Arthur R. Barry, of Milwaukee, for appellant.
Joseph B. Doe, of Milwaukee, for respondent.
OWEN, J. (after stating the facts as above).
The defendant's first position, as we understand it, is this: It appears upon the face of the notes that they were given by the Mobile Hoe Company as a part of the purchase price for certain machinery sold by the plaintiff to it, the title to which was reserved in the plaintiff until the full amount of the notes should be paid; the defendant, being the indorser of the notes, is entitled to be subrogated to all security which the plaintiff had; that by bringing this action plaintiff has placed it beyond its power to deliver the security which it had, to wit, the contract of conditional sale, because the commencement of this action constituted an election on the part of the plaintiff to treat the conditional sale as an absolute one, and amounted to a waiver of the security which it had in and by virtue of the contract of conditional sale. We pause here simply to refer to the fact that this defense was not pleaded by the defendant in his answer, lest an inference may be drawn from our silence upon the subject that the pleadings as framed present the defense urged by the defendant. However, we will not consider the question of pleading, but pass directly to the merits of the defendant's claim.
[1][2] An analysis of his position amounts to this: He admits that he indorsed the notes, but claims that the institution of a suit against him to enforce his liability as an indorser releases him. That is the sum and substance of his claim; his contention being that a vendor of goods upon a contract of a conditional sale must elect whether he will retake the goods or sue for the purchase price, and that, when he resorts to one of these remedies, he waives his right to resort to the other. In this case the plaintiff, having brought an action to recover against the indorser of the note, waived all security which the contract of conditional sale afforded him, and by such waiver the indorser is released, because he cannot be subrogated to the security which was in the hands of the creditor. This argument leads to an absurdity which scarcely calls for elucidation, and makes the undertaking of an indorser under such circumstances a rather innocuous formality. We think a court should hesitate in adopting a course of reasoning which leads to such a farcical conclusion. However, we do not deem it necessary to pursue the subject further, because of the faulty premise upon which the conclusion must rest, and that is that a vendor of goods upon a contract of conditional sale waives the right to retake the goods in an attempt to enforce collection of the purchase price. This is not the law of this state. It was held in Wiedenbeck-Dobelin Co. v. Anderson, 168 Wis. 212, 169 N. W. 615, that the two remedies were not inconsistent, and that by pursuing one the vendor did not waive his right to the other. This principle is now embodied in statute law, by the provisions of the Uniform Conditional Sales Act (section 1684u-24, Stats.; chapter 672, Laws 1919). Whether the law of this...
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..."Until that is done the right of subrogation is a mere inchoate right and cannot be enforced." Id. (quoting Defiance Mach. Works v. Gill, 170 Wis. 477, 483, 175 N.W. 940 (1920)). Subrogation "is a creation of the law whereby the substantial ends of justice may be accomplished regardless of ......
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...of newly discovered evidence made after judgment. Milwaukee Worsted Mills v. Winsor, 157 Wis. 538, 147 N. W. 1068;Defiance Machine Works v. Gill, 170 Wis. 477, 175 N. W. 940. Even in a criminal case it is said: “The presumption is always that, by due diligence, the parties to the action can......
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...does not lose his lien by reason only that he has obtained judgment or decree for the price of the goods." See Defiance Machine Works v. Gill, 170 Wis. 477, 175 N. W. 940. That statute, if it had been in force at the time, might have required a different result in Alden v. Dyer Bros., supra......
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D'Angelo v. Cornell Paperboard Products Co.
...part of Employers' cause of action founded in subrogation. Subrogation is a well-known equitable action. Defiance Machine Works v. Gill (1920), 170 Wis. 477, 483, 175 N.W. 940. 7 Subrogation may properly be applied when a person other than a mere volunteer pays a debt or demand which in equ......