Mahringer v. Knoeller
| Decision Date | 05 January 1960 |
| Citation | 9 Wis.2d 7,100 N.W.2d 371 |
| Parties | Frank E. MAHRINGER, Appellant, v. Herman M. KNOELLER, Respondent. |
| Court | Wisconsin Supreme Court |
L. A. Willenson, Milwaukee, for appellant.
Ray T. McCann, Milwaukee, for respondent.
The action is one to recover money which plaintiff alleges is wrongfully withheld by his attorney, the defendant. On defendant's motion the trial court granted summary judgment dismissing the amended complaint.
Plaintiff's wife brought action for divorce against him and plaintiff retained defendant, who is an attorney, to represent him in that action. The proceedings were lengthy and the property to be divided was substantial. In a partial distribution of property the trial court in the divorce action ordered a savings bank account of $5,992.45 to be paid to plaintiff or his attorney, the defendant. The collection was made by the attorney and deposited in a trust account. Thereafter the attorney and client met in the attorney's office to settle up their affairs. Exactly what took place is in dispute but it is undisputed that the attorney retained $3,000 for fees and $24.95 for disbursements, leaving $2,967.50 for the client. The attorney tendered his check in that amount and both parties signed a letter prepared by the attorney. It reads:
'Mr. Frank E. Mahringer
3550-A North Green Bay Avenue
Milwaukee, Wisconsin
'In re: Magdalene Mahringer vs Frank E. Mahringer
'Dear Frank:
'Enclosed find my check for $2967.50 representing the net proceeds of check received from the Clerk of Milwaukee Circuit Court in the sum of $5992.45 in the above divorce action, less the agreed sum of $3024.95, the balance due for legal services and disbursements. This closes your account which is paid in full and constitutes a full compromise and complete settlement between us. Kindly signify your approval by signing the acceptance clause below.
'Accepted this 19th day of June, 1957.
/s/ Frank E. Mahringer
Frank E. Mahringer'
The check bore the endorsement 'In full of account.'
When plaintiff left defendant's office he took the check with him but both parties overlooked the fact that Knoeller's check had not been signed. Forty-five days later, on August 7, 1957, plaintiff presented the check to defendant and asked that it be signed. Knoeller did so and Mahringer cashed the check.
Mahringer has concluded that he was overcharged and he has brought the present action to compel Knoeller to disgorge the amount which his attorney Knoeller retained, except for $350 which Mahringer deems reasonable pay for the services of his attorney.
Defendant's answer pleaded the above accord and satisfaction and moved for summary judgment, supported by affidavits that defendant had originally presented a bill for $3,600 for legal service and the reduction to $3,000 was in compromise and settlement of the account.
Plaintiff filed opposing affidavits showing that, at the meeting in the lawyer's office, plaintiff executed the accord and satisfaction under duress in as much as Knoeller said to him that, unless he signed the accord and accepted the proffered check, Knoeller would not give him anything.
By further affidavits by Knoeller, and by a witness, Knoeller denied the alleged coercion and by uncontradicted affidavits it appeared that Mahringer retained possession of the unsigned check for 45 days after which he procured Knoeller's signature, endorsed the check 'In full of account' and deposited it in his account.
Defendant also contends that plaintiff has waived his right to proceed in an action at law and is estopped from so proceeding because defendant submitted his disagreement to the arbitration of the Milwaukee Bar Association and agreed to be bound by it. Neither the trial court nor we consider that the facts in defendant's affidavits are sufficient to support a summary judgment in his favor on that ground.
But the circumstances appeared to the trial court that the pleadings and affidavits establish conclusively that there was an accord and satisfaction leaving no issue of fact for trial. The court stated its conclusions in a memorandum decision as follows:
'* * * Where adequate time has intervened between the initiating act as to an agreement and the ultimate consummation of such agreement so as to afford ample opportunity for independent reflection by the one claiming duress, the initial duress, if such in fact existed, does not vitiate the agreement or transaction. Wolff v. Bluhm, 95 Wis. 257 ; Rochester Machine Tool Works v. Weiss, 108 Wis. 545 ; Batavian Bank v. North, 114 Wis. 637 .
'It was held in the case of Olson v. Northwestern Furniture Co., 6 Wis.2d 178, 182 , as follows:
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Smith v. Kleynerman
...(on appeal).43. Wis. Elec. Power Co. v. City of Milwaukee , 263 Wis. 111, 56 N.W.2d 784 (1953) (on appeal).44. Mahringer v. Knoeller , 9 Wis.2d 7, 100 N.W.2d 371 (1960) (on appeal).45. Barker v. Retail Credit Co. , 8 Wis.2d 664, 100 N.W.2d 391 (1960) (on appeal).46. Village of Brown Deer v.......
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