Gage v. Allen
| Decision Date | 11 December 1894 |
| Citation | 61 N.W. 361,89 Wis. 98 |
| Parties | GAGE ET AL. v. ALLEN ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.
Action by Albert S. Gage and Eliphalet B. Gage against Edward W. Allen and others for the conversion of certain goods in the possession of defendant Allen, as the assignee in insolvency of Elizabeth A. Wayland, on which plaintiffs, as copartners, held a chattel mortgage, and further to recover on an undertaking entered into by defendant Allen, as principal, and defendants R. J. Keplar and S. E. Brimi, as sureties, under the terms of which the goods in question were surrendered to them by defendants Cosgrove and Dunn, who held them, as sheriff and deputy, under proceedings in replevin by these plaintiffs against said Wayland. Defendant Allen sold the goods, and, on a termination of the replevin suit in favor of these plaintiffs, paid the proceeds of such sale over to them, and counterclaims this payment against plaintiffs' second cause of action. Plaintiffs declined to introduce any evidence on this, the second trial of the second cause of action, judgment in their favor on the first trial having been reversed (54 N. W. 627) on the ground that the court had no jurisdiction of the cause pending an appeal from a judgment separately rendered on the first cause of action. At the close of defendants' testimony, the court below directed a verdict in their favor, and plaintiffs appeal. Reversed.
A statement of the facts in this action, down to the time when the former judgment rendered in favor of the plaintiffs on the second cause of action stated in the complaint, without determining the first cause of action therein, was reversed, will be found in 84 Wis. 323, 54 N. W. 627, with reasons for such reversal. A trial of the first cause of action was had in September, 1891, which resulted in a judgment for the defendants Allen, Cosgrove, and Dunn. After the cause was remanded from this court to the circuit court, and as the same was about to be tried as to the second cause of action, the plaintiffs appealed to this court from the judgment rendered against them on the first cause of action, and claimed that the circuit court had no jurisdiction, pending such appeal, to proceed to a trial of the issues as to said second cause of action; but the court overruled the objection, and proceeded with the trial, the plaintiffs declining to introduce any evidence. After a considerable portion of the defendants' evidence had been introduced, but before the close of the trial, the defendants' attorneys, without notice to or knowledge by the plaintiffs' attorney, satisfied or attempted to satisfy the judgment on said first cause of action by writing upon the judgment docket, opposite the docketing of said judgment, a formal satisfaction thereof. The evidence introduced related wholly to the issue on the counterclaim of the defendant Allen to recover back the $600 he had paid to the plaintiffs' attorney, which was interposed to said second cause of action, in substance, that on the 24th of February, 1888, the plaintiffs' attorney, representing them, stated and represented to Allen that he had recovered for the plaintiffs judgment against him (Allen) of $1,000, which he must pay at once, or he would bring suit against him and his bondsmen for its recovery, and that he (Allen) would in that case be compelled to pay that sum and costs, and that relying on such statements, and believing them to be true, he paid said attorney, for the plaintiffs, $600; that the plaintiffs had no judgment against him, and had no just or lawful claim against him, other than the suit herein, and that said payment was made entirely through mistake, as aforesaid, because he relied on said representation of the plaintiffs' attorney; that the plaintiffs refused to repay said sum, and he demanded judgment for it, with interest. The defendant Allen having been sworn as a witness, plaintiffs objected to the introduction of any evidence under the counterclaim on the ground that it did not state facts sufficient to constitute a cause of action, but the objection was overruled. He testified that he was the assignee in the voluntary assignment of Elizabeth Wayland, and after the judgment in the case of Gage et al. v. Wayland he had a conversation with the plaintiffs' attorney, Doolittle, in reference to the matter, in February, 1888, in his store; that he had received a notice that they had secured a judgment against him in the supreme court of $1,000, with $200 or $300 costs; that he paid no immediate attention to it; that Doolittle demanded a settlement of this matter; that he told him he knew nothing about it, more than what the paper said; that Ellis, his attorney, was away, and there was nobody about the office who knew anything about it; that Mr. Doolittle pressed, and even insisted it must be settled at once; that he wanted to wait until he heard from Ellis, but Doolittle would not do that; that, unless settled, he said, he would have to take some action in the matter; that he consulted Mr. Sutherland, an attorney, but he was not able to advise him about the matter; that Doolittle threatened not only to make seizure of the goods, but to enter his store, and, “by process, threatened to make me pay for those goods, and he said there must be no delay about it, but it must be done at once,--he would not wait until Mr. Ellis came”; that “he finally told him he would pay him all the money he had of the proceeds of the property,” and A receipt was given for the money, as follows: The notice referred to by the witness was entitled in the case of Albert S. Gage et al. v. Elizabeth A. Wayland, as follows: ...
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Putnam v. Time Warner Cable
...contexts. Since the late 1800s, it has been applied to bar repayment of a judgment erroneously paid to an attorney, Gage v. Allen, 89 Wis. 98, 61 N.W. 361 (1894); to bar repayment of interest overpaid on a loan, Burgess v. Commercial National Bank, 144 Wis. 59, 128 N.W. 436 (1910); and to b......
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...payment. See, e.g., Burgess v. Commercial Nat'l Bank of Appleton, 144 Wis. 59, 65, 128 N.W.2d 436 (1910); see also Gage v. Allen, 89 Wis. 98, 61 N.W. 361 (1894); G. Heileman Brewing Co. v. City of LaCrosse, 105 Wis. 2d 152, 312 N.W. 2d 875 (Ct. App. ¶ 9. The customers argue that because the......
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... ... Fidelity & Deposit Co. (C. C. A.) 167 F. 95; ... Ramsey v. Landry, 78 N.H. 612, 102 A. 531; ... Clements v. Dempsey, 7 Pa. Super. 52; Gage v ... Allen, 89 Wis. 98, 61 N.W. 361; Moore v ... Campbell, 36 Vt. 361 ... Both ... these propositions must be considered ... ...
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