Klauber v. Wright

• Decision Date: 10 May 1881
• Citation: 8 N.W. 893,52 Wis. 303
• Parties: KLAUBER v. WRIGHT, GARNISHEE, ETC.
• Court: Wisconsin Supreme Court

52 Wis. 303

8 N.W. 893

KLAUBER

v.WRIGHT, GARNISHEE, ETC.

Supreme Court of Wisconsin.

Filed May 10, 1881.

Appeal from circuit court, Monroe county.

Flanders & Bottum, for appellant.

John Barker, for respondent.

COLE, C. J.

In this case we have been favored with the opinion of the learned circuit judge, given on the motion to confirm the report of the referee, and on sustaining the garnishee's exceptions to that report. This opinion contains such a full, clear, and satisfactory discussion of the questions of law and fact involved in the case that it might, in the main, be adopted as presenting our own views on these questions. The fact that a settlement was made between the garnishee and principal debtor, Noyes, on the twenty-sixth of April, 1876, is too conclusively established to admit of doubt. A memorandum in writing, of such settlement, was drawn up and signed by the parties at the time, which memorandum stated that on that day all book accounts and all other demands were settled between them “except the wood account.” The writing states the amount which was found due Noyes, and the manner in which the same was to be paid. Now a creditor of Noyes attempts to overhaul and set aside this settlement, on the ground that it was made in fraud of his rights. There is not the least scintilla of evidence that either party, in making the settlement, intended to defraud any one. So far as creditors are concerned the settlement seems to have been made in perfect good faith, for the purpose of adjusting the mutual dealings and business transactions of the parties to it. But it is said that the appellant, at this time, was a creditor of Noyes; that Noyes was in failing circumstances, to the knowledge of the garnishee, who obtained an advantage in the settlement. In other words, that several hundred dollars more were actually due Noyes than were stated to be due him in the memorandum. But the learned circuit judge found that at the time of making the settlement neither of the parties to it acted under any mistake of fact as to the items or matters included in the settlement, or omitted therefrom, or as to the correctness of any such item. This being the case, the learned judge held that, even if Noyes made an improvident settlement,--one which diminished his ability to pay his debts,--that this afforded no ground nor reason for setting the settlement aside at the instance of a creditor of one of the parties to it. It seems to us there can be no doubt about the soundness of that proposition; for any other rule would, in the language of the circuit judge, tend to overturn all the transactions of an unsuccessful business man, and would be destructive of all confidence among men. But we remark further that we see no ground for holding, upon the evidence, that the settlement should be set aside either on the application of Noyes, or of a creditor of his. The burden was upon the appellant of impeaching the settlement by showing fraud or mistake therein. There was no sufficient evidence in this case to authorize the court to open it. This court has more than once recognized and enforced the elementary doctrine that “the evidence to surcharge an account should be clear and satisfactory.” Marsh v. Case, 30 Wis. 531. “Principle and public policy...