Engmann v. Estate of Immel

• Decision Date: 08 January 1884
• Citation: 18 N.W. 182,59 Wis. 249
• Parties: ENGMANN v. ESTATE OF IMMEL.
• Court: Wisconsin Supreme Court

59 Wis. 249

18 N.W. 182

ENGMANN

v.ESTATE OF IMMEL.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from circuit court, Milwaukee county.

F. N. Frisby, for respondent, Jacob Engmann.

E. S. Smith and Nath. Pereles & Sons, for appellant, the Estate of John Immel.

ORTON, J.

The plaintiff held the note of John Immel at the time of his death for $100, given November 18, 1870, payable on demand, with 10 per cent. interest until paid. The county court in probate allowed said note as a valid claim against the estate, less the payment of $10 in 1873 and of $10 in 1877 thereon. From this allowance the executor of said estate appealed to the circuit court, and in that court, after trial, the jury rendered a verdict for the whole amount of the note, principal and interest, less said two payments, and judgment was rendered thereon, from which this appeal is taken. The defense was that the claim was barred by the statute of limitations, and this was really the main issue. The first point taken is that the execution of the note was not proved, and that the circuit judge erred in instructing the jury as follows: “You have heard the testimony of Mr. Frisby about the note, as to the genuineness of the signature. His testimony is uncontradicted, and unless there is something in the case which casts discredit on his testimony you are bound to accept it as true.” The witness Frisby, and who was also the attorney of the plaintiff, testified that he was scquainted with John Immel in his life-time, and had done business for him, and had seen him write his name to one or two notes and to one or two affidavits, one of which he thought was on file in a suit he had for him in this same court, and knew his signature, and that he believed and had no doubt that the signature to the note was his. On cross-examination he testified that the time he saw the deceased so write his name was 10 years ago, about the time of the date of this note, but that he can remember the looks of his signature, and can swear that he believes the signature to the note to be genuine. This was all the testimony there was on the question, and none was offered to rebut it.

1. It is claimed by the learned counsel of the appellant that the above instruction, in application to this testimony, that it was “uncontradicted,” and that “unless there was something in the case which casts discredit upon it the jury are bound to accept it as true,” was erroneous. This instruction would seem to be a self-evident proposition. It is the same as telling the jury that they must find according to the uncontradicted evidence, unless such evidence was discredited in some way. The instruction might have been made still stronger and it would have been strictly correct. They might properly have been instructed that there was nothing in the case which cast any discredit upon Frisby's testimony, for there was not. It is said that the jury ought to have been told that they might judge of its credibility, because 10 years had elapsed since the witness saw the deceased write his name, and that this cast discredit upon his testimony. He did not say that it was 10 years since he had seen his signature. But there is nothing even improbable that the witness, an attorney at law, should remember the signature of his client, which he saw him make several times 10 years ago. There is no law or respectable decision which would justify the judge, in instructing the jury in respect to such evidence as this, that they might reject or disbelieve it, at their pleasure. There is no question of credibility about it, and the jury must “accept it as true.” The jury might as well, in their arbitrary and sovereign pleasure, render a verdict without evidence as against evidence. The cases cited by the learned counsel are applicable only to contradicted or discredited evidence, or where the jury have some good legal reason for disbelieving the testimony of a witness. This testimony was ample proof of the signature of this note, standing alone. It is only in relation to facts contested by the evidence upon which the jury are allowed to render a special verdict. This has often been decided by this court, and if the court had said to the jury in this case that this fact had been proved, it would have been correct. It would be extremely unsafe, as well as most unreasonable, to allow a jury to reject testimony which is uncontradicted, and from a witness unimpeached, and which is not liable to any question by any of the rules or tests of credibility known to the law, and any instruction to the contrary would clothe the jury with a supreme, arbitrary, and irresponsible power. It is the indisputable duty of courts to set aside verdicts rendered against the evidence, as this, unquestionably, would have been if the jury had found that the execution of this note had not been proved by this testimony.

2. It is claimed that the testimony of the plaintiff that he authorized his wife Elizabeth to collect the note for him during the life-time of Immel, and gave her the note for that purpose, is objectionable, because relating to a transaction with the deceased. This was very clearly not a transaction with the deceased, and was not a matter about which the deceased could have testified if he had been living. It related to a matter entirely independent and outside of any demand upon him for or payment by him of the $10 upon the note in 1873. It is proof of a mere agency of the wife for the husband, the plaintiff, to do an act which she might have never done.

3. It is claimed that the wife could not testify to the fact that she collected from the deceased while living, and that he paid to her $10 upon the note for her husband, because she was the wife of the plaintiff, and not a party to the suit, and therefore an incompetent witness for or against him.

That the wife ex necessitate may be an agent for her husband, and testify as such of her doings within such agency, has been too often decided by this and all other courts to justify the citation of authority. The plaintiff testified that he gave the note to his wife and told her to collect it. Can it be that this is not an agency of the wife from the husband to receive payment on the note? But it is contended by the learned counsel that it is not. An agency could not well be created by more pertinent and appropriate language. The witness Elizabeth testified that “she went to her brother, John Immel, and told him to give her some money on the note, and he gave her $10 on it.” This was in the year 1873. Appolonia Miller testified that the plaintiff in the year 1877 gave her the note, and told her to collect the note or get what she could on it, and this she told to the deceased, and that he paid her $10 on it. This testimony was uncontradicted, and on cross-examination was not weakened. There are many exceptions taken in relation to all this testimony, but they are not supported. And so it may be said of the exceptions to the instructions of the court to the jury relating thereto. They seem to be full and fair, and express the law.

4. The last and most material question is whether these two payments--the one in 1873 and the other in 1877--on the note are evidence of a new or continuing contract, so as to take the cause out of the operation of the statute of limitations. John Immel died in 1880, and this note was presented as a claim against his estate in September of that year. In respect to these two payments the jury were instructed that it must appear to them, “from the circumstances in the case, that the debtor intended to recognize the debt as subsisting, and that he was willing to pay it” in order to keep the obligationalive; and again, “to make these part payments effectual, they must be satisfied there was an actual payment of something of value, and that the debtor intended at the time to recognize the debt as subsisting, and that he was willing to pay it.” It is claimed in the brief of the learned counsel that the mere fact of these payments does not imply a promise to pay, and that that must be left to the jury; and White v. Jordan, 27 Me. 370, is cited to this effect. The instructions certainly go the full length in leaving to the jury the legal effect of these payments, and in language quite favorable enough to the appellant.

We need not concern ourselves very much with the broad position that after the debt is once extinguished by the running of the statute it cannot be renewed or continued by a new promise to pay, or payments on it, or the authorities cited to support it, for here the statute had not fully run from the first payment to the last. It must be admitted that the authorities, in respect to the effect of mere payments as evidence of continuing liability on the contract after the statute had...