Pawlak v. Pelkey

• Decision Date: 30 April 1918
• Citation: 167 Wis. 367,167 N.W. 427
• Parties: PAWLAK v. PELKEY ET AL.
• Court: Wisconsin Supreme Court

167 Wis. 367

167 N.W. 427

PAWLAK

v.PELKEY ET AL.

Supreme Court of Wisconsin.

April 30, 1918.

Appeal from Circuit Court, Oconto County; Oscar M. Fritz, Judge.

Action by Joseph Pawlak against Sol G. Pelkey and another. Judgment on verdict for plaintiff, and defendants appeal. Affirmed.

The complaint in this case was amended on the trial, and as amended states substantially that the plaintiff was the owner of certain personal property and also certain real estate at the time alleged in the complaint; that in October, 1914, the defendants were the owners of a $700 note secured by a mortgage upon plaintiff's property, and that thereafter defendants sold said note and mortgage and guaranteed the payment of the note; that in July, 1915, while said note and mortgage were unpaid the defendant Sol G. Pelkey, on behalf of the defendants, obtained from the plaintiff a deed of conveyance of real estate without paying any consideration therefor, which real estate was of the value of $2,300 subject to an incumbrance of $700; that defendants had guaranteed payment thereof; that in July, 1915, defendants conveyed said real estate to one John Neta, and that said Neta is an innocent purchaser thereof; that on July 2, 1915, and for some time prior thereto, plaintiff was and still is of unsound mind and incapable of doing business; that July 2, 1915, defendants were acting as collectors of certain notes and mortgages upon the property of plaintiff and threatened to foreclose; that defendants demanded from plaintiff a bill of sale of all personal property owned by plaintiff in payment of said notes and mortgages amounting to $200; that said personal property was of the value of $950, and defendants paid no consideration therefor; that by reason of the premises plaintiff was damaged in the sum of $2,350, for which judgment was demanded.

The jury found that on July 2, 1915, the time of the transaction with Sol G. Pelkey, plaintiff was mentally incapable of understanding the nature and import of the transactions, including the bill of sale and deed which he then executed; that said Sol G. Pelkey knew at the time of the transactions that plaintiff was mentally incapable of understanding the nature and import thereof, and that said Sol G. Pelkey ought in the exercise of ordinary care to have known that plaintiff was so mentally incapable; that the market value July 2, 1915, of the personal property removed by said Pelkey was $700, and that the market value July 2, 1915, of the property described in the deed executed by plaintiff was $2,000.

Plaintiff moved for judgment on the verdict; defendants made several motions and among others a motion to set the verdict aside and for new trial. The court overruled all of defendants' motions, and granted plaintiff's motion for judgment on the verdict. Judgment was rendered accordingly, from which this appeal was taken.Classon & Whitcomb and John B. Chase, all of Oconto, for appellants.

Lehner & Lehner, of Oconto Falls, for respondent.

KERWIN, J. (after stating the facts as above).

The facts are substantially set forth in the statement of the case. Motions were made for nonsuit, to change...