Kiewert v. Rindskopf

• Decision Date: 31 January 1879
• Citation: 46 Wis. 481,1 N.W. 163
• Parties: EMIL KIEWERT, APPELLANT, v. LOUIS RINDSKOPF, RESPONDENT.
• Court: Wisconsin Supreme Court

46 Wis. 481

1 N.W. 163

EMIL KIEWERT, APPELLANT,

v.LOUIS RINDSKOPF, RESPONDENT.

Supreme Court of Wisconsin.

January Term, 1879.

Appeal from circuit court, Milwaukee County.

Jenkins, Elliott & Winkler, for appellant,

Cottrill, Cary & Hanson, for respondent.

ORTON, J.

--The circumstances under which the money was paid by the plaintiff to the defendant, a part of which is sought to be recovered in this action, were substantially as follows: Robert Kiewert, a brother of the plaintiff, was under indictment in the federal court for certain offenses against the revenue laws of the United States, and the defendant informed the plaintiff that W. H. Wight, an attorney at law, offered and agreed to render certain services through the attorneys of the government, by which the sentence of the said Robert, in case of his conviction, should be reduced to the least punishment allowed by law for such offenses, in consideration of the sum of three thousand dollars.

In consequence of this representation, and with this understanding, the plaintiff gave and paid to the defendant said sum of three thousand dollars, to be paid to the said Wight for such services, but the defendant paid to the said Wight only one thousand dollars of such sum, and converted the balance to his own use, and it was not true that said Wight had offered and agreed to render such services for the sum of three thousand dollars, but in truth and fact, had offered and agreed to render the same for the sum of one thousand dollars only, the sum so actually paid to him therefor. This action is brought to recover the two thousand dollars so fraudulently obtained and converted.

It is contended by the learned counsel of the respondent, that the agreement so made between the plaintiff through the agency of the defendant, and the said Wight, for such services, was illegal and void, and that therefore none of the moneys so paid by the plaintiff to the defendant for the purpose of carrying it into execution, can be recovered, and the circuit court seems to have taken this view of the question, and rendered judgment against the plaintiff, from which this appeal is taken. In any view which can be taken of this case, under the pleadings and the evidence, we think the judgment is erroneous.

I. If there was any contract in respect to these services of Wight, which would be held illegal or against public policy and therefore void, it related only to the payment of one thousand dollars, and the two thousand dollars sought to be recovered in this action was not within, but entirely outside of, such contract, and even in the absence of any fraud, was paid to the defendant and is held by him without any consideration whatever, and is not affected by the illegality of the contract, and belongs to the plaintiff, and in equity and good conscience ought not to be retained by the defendant, and may be recovered as for money had and received. Woodward v. Hill, 6 Wis. 143.

II. The gravamen of this action is the fraud practiced by the defendant in obtaining the two thousand dollars from the plaintiff by falsely representing that this sum was within and a part of the contract with Wight, and that the sum agreed to be paid to Wight was three thousand dollars, when in fact it was only one thousand dollars. Where money is so charged to have been obtained by fraudulent representations, the only material questions to be considered are: First, were such representations intentional, material and false? Second, did they produce a false impression upon the mind? Third, were they the inducement of the payment? Fourth, were they relied upon as being true? If these elements are present, they constitute a positive fraud without exception, and the matters to which such fraudulent representations relate, whether legal or illegal, will not lessen the fraud or affect the liability of the guilty party. Kerr on Fraud and Mistake, 73; Smith v. Mariner, 5 Wis. 551;Kelley v. Sheldon et al. 8 Wis. 258;Reynell v. Sprye, 21 Law J. ch. 633.

III. If it is found from the evidence that the agreement was, that Wight should render such services so claimed to be improper and against public policy, for the sum of three thousand dollars, and the defendant obtained the same from the plaintiff for the purpose of such payment, but actually paid Wight only one thousand dollars, and converted the other two thousand dollars to his own use, even then the plaintiff may recover the money so misapplied and converted, and the defendant cannot defend on the ground that the contract for such services was illegal or against public policy. In respect to such a transaction, the defendant was the agent of the plaintiff, and received the money of the plaintiff with specific directions...