Kammermeyer v. Hilz

• Decision Date: 13 January 1903
• Citation: 116 Wis. 313,92 N.W. 1107
• Parties: KAMMERMEYER v. HILZ ET AL.
• Court: Wisconsin Supreme Court

116 Wis. 313

92 N.W. 1107

KAMMERMEYER

v.HILZ ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1903.

Appeal from circuit court, Milwaukee county; Lawrence W. Halsey, Judge.

Action by Catharine Kammermeyer against Adam Hilz and another. From a judgment for plaintiff, defendants appeal. Reversed.

This action was commenced January 11, 1887, to recover $2,850, alleged to have been received by the defendants March 25, 1891, for the use and benefit of the plaintiff, under the following circumstances: The plaintiff is the daughter of the defendants, and was formerly known as Kittie Hilz. When she was about 20 years of age, she was begotten of a child by one A. W. Priest, a married man, in whose employ she was at the time. The child was born December 25, 1890. A short time afterwards the defendant Adam Hilz employed an attorney and threatened to bring suit against A. W. Priest for the seduction, whereupon, and on March 25, 1891, Priest settled with the defendants by paying to their attorney $3,000. The attorney retained $150, and paid the balance of $2,850 to the defendant Adam Hilz, who at the same time and in consideration therefor agreed with Priest in writing to bring up, maintain, educate, clothe, and support the child, and save Priest harmless from all claims on account thereof, and gave a bond to secure such agreement. The child died in June, 1891. December 7, 1893, Kittie was married to Kammermeyer. In the winter of 1895 the plaintiff made demand upon the defendants for the money so received by them from Priest, and thereupon, and after some negotiations, and on March 23, 1895, the defendants paid to the plaintiff $600, and took from her a receipt in the words and figures following: “$600. Milwaukee, Wis., March 23, 1895. Received of Adam and Catharine Hilz six hundred dollars ($600), being in full payment of any claim which I have or may have after their death as heir. Mrs. Katie Kammermeyer.” Nearly two years afterwards the plaintiff commenced this action to recover the whole of the $2,850, with interest from the time of making such demand. The defendant Adam answered by way of admissions, denials, and counter allegations, alleging the settlement with Priest, a counterclaim for expenses for and in behalf of the plaintiff, and the settlement with her of March 23, 1895, by paying the $600 and taking the receipt mentioned. The defendant Catharine answered, and denied having received any of the money. Such issues were tried, and as a result of the trial the jury found by special verdict, among other things, that of the $2,850 the defendants were entitled to $520 and the plaintiff to $2,330. The judgment entered thereon was reversed by this court May 15, 1900, and the cause was remanded for a new trial. 107 Wis. 101, 108, 82 N. W. 689. Upon the remittitur being filed, the defendant Adam, by leave of the court, amended his answer and counterclaim therein among other things by alleging, in effect, that the receipt by mutual mistake and misunderstanding failed to embody the agreement upon which the $600 was so paid March 23, 1895; that by the terms of that agreement the $600 was to be a full payment, settlement, satisfaction, and discharge of any and all claims which the plaintiff had or might have in any portion of the $2,850; and that the receipt was intended to be drawn and was supposed to have been drawn so as to express such agreement, but that the scrivener had failed to so draw the receipt; and asked and demanded that such receipt should be reformed so as to express the true agreement, and so as to read as follows: “$600. Milwaukee, Wis., March 23, 1895. Received of Adam and Catharine Hilz the sum of six hundred dollars ($600) in full payment, settlement, satisfaction, and discharge of any and all claims which I have or may have in any portion of the $2,850 received by Adam Hilz from A. W. Priest for his and my benefit. Mrs. Katie Kammermeyer.” The plaintiff, by way of reply, put in issue such equitable counterclaim. At the close of the trial the jury returned a special verdict, wherein they found, by direction of the court, in effect, the payment of the $3,000 by Priest, March 25, 1891; the giving of the receipt therefor, signed by the plaintiff and the defendants; and the contract of that date between the defendants and Priest, mentioned. The jury further found, in effect: (2) That of the sum mentioned Priest paid $1,425 for the use of the plaintiff; (3) that the defendants had not established under their counterclaim set up in the answer any claim for expenses for which they are entitled to damages against the plaintiff; (4) that the plaintiff and defendants did not, on or just prior to March 23, 1895, enter into an agreement to settle for $600 the plaintiff's claim against the defendants for her portion of the $2,850 received from Priest; (5) that there was no mutual mistake in drawing the first receipt mentioned, and that receipt did not fail to express the true agreement between the parties, and there was no agreement that it should be a full release and satisfaction of the plaintiff's claim for such money; (6) that the $600 was not agreed and intended by the parties to be a partial payment of the plaintiff's claim against the defendants thereon; (7) that the agreement actually reduced to...