Plummer v. Leonhard
| Decision Date | 25 November 1969 |
| Docket Number | No. 129,129 |
| Citation | 172 N.W.2d 1,44 Wis.2d 686 |
| Parties | Robert W. PLUMMER, Respondent, v. George J. LEONHARD, Appellant. |
| Court | Wisconsin Supreme Court |
This case arises out of a transaction between the plaintiff-respondent, Robert Plummer (hereinafter plaintiff), and his employer, defendant-appellant, George J. Leonhard (hereinafter defendant). On January 4, 1962, plaintiff gave defendant a check for $4,320 made payable to The Main Insurance Agency of which defendant was the sole proprietor. Plaintiff brought this action to recover the money claiming that it was a loan which defendant had not paid back. Defendant contended the money was a return of an overdraw and that plaintiff released any claim to the money by virtue of agreements signed in 1965 and 1966. There was evidence that some money paid to plaintiff during 1964 was connected to the loan or return of overdraw, but testimony was in conflict as to what the money was for.
The case was tried before a jury which answered the following questions:
'What sum of money does the defendant, George J. Leonhard, owe the plaintiff, Robert W. Plummer, at this time?
'Answer: $2380.29
Dissenting: _ _The trial judge entered judgment accordingly and from this the defendant appealed.
Petersen, Sutherland, Axley & Brynelson, James C. Herrick, Madison, for appellant.
Jasper, Winner, Perina & Rouse, Donald R. McCallum and Harry Sauthoff, Jr., Madison, for respondent.
On appeal, the main argument of defendant centers on two employment 'agreements' which were signed in 1965 and 1966. The agreement of January 22, 1965, provides in part:
'THIS AGREEMENT entered into this 22nd day of Jan, 1965, by and between George L. Leonhard of Madison, Wisconsin, hereinafter referred to as 'Employer' and Robert W. Plummer of Madison, Wisconsin, hereinafter referred to as 'Employee.'
'* * *
'WHEREAS, it is the desire of the parties hereto that the employment relationship of the parties be reduced to writing and that said written contract govern the rights of the parties from and after the date hereinafter provided.
'NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is agreed as follows:
'1. All former contracts and agreements both written and oral are abrogated and the parties hereto mutually release each other from any claim arising out of any previous contracts and this contract shall supersede and release any and all previous contracts.
The agreement of February 1, 1966, was signed by both parties when The Main Agency was sold by appellant to a third party. That agreement provided:
'THIS AGREEMENT entered into this 1st day of February, 1966 by and between George J. Leonhard hereinafter referred to as Leonhard and Robert W. Plummer, hereafter referred to as Plummer.
'WHEREAS Leonhard has now opportunity to sell said agency and Plummer has opportunity to associate himself with the buyer of said agency and is desirous of seeing such sale consummated and the parties hereto mutually desire to abrogate any contract they might have between them and to mutually release each other from any obligation arising out of said relationship.
'NOR, THEREFORE, IT IS AGREED that in consideration of One Dollar and other valuable consideration and in consideration of the mutual covenants herein contained it is understood and agreed that the total rights of both parties are limited to the settlement provisions for the year 1965 of that certain employment contract between the parties dated January 2, 1965, and that when such settlement has been consummated all contracts and all rights thereunder between the parties are terminated and upon the consummation of such settlement each party hereto mutually and by this instrument releases each other from any claim, action or cause of action that they might have now or in the future arising out of any of the aforesaid contracts or out of anything in any manner connected with the aforesaid business relationship.'
Defendant argues these agreements are releases by which plaintiff relinquished any claim which may have arisen out of the employment of business relationship. Defendant further contends that the January 4, 1962, check from plaintiff to defendant was not a personal loan but a return of an overdraw and is based on the business relationship of the two parties. In support for this proposition, defendant relates evidence brought out during the trial, to-wit: (1) The amount of the check, $4,370.40, was based on production figures of The Main Agency for 1961, contained in a letter from defendant to plaintiff and dated December 30, 1961; (2) the only security which plaintiff received for the money was the provisions in the 1962 and 1964 employment contracts which allowed plaintiff certain credits toward the purchase of the business should defendant die; (3) the check was not made out to defendant but to The Main Agency; (4) in his 1961 state and federal income tax returns plaintiff reported $4,370.40 as 'Commissions Returned' and reported the difference between $7,200 and $4,370.40, or the sum of $2,829.60 as income for tax purposes; and (5) plaintiff stated, in a deposition, that he would not have made the loan without obtaining a note had it not been for the employment relationship.
Defendant relies principally on the language in the February, 1966 agreement: '* * * or out of anything in any manner connected with the aforesaid business relationship.' This broad language is immediately preceded by reference to prior specific employment contracts between the two parties: '* * * arising out of any of the aforesaid contracts. * * *' When limiting language appears in a release and precedes the general and broader words, the specific language will control.
'* * * Following a general rule of construction of contracts, * * * it is generally held that general words in a release are to be limited and restricted by particular words in the recital, at least where there is nothing on the face of the instrument, other than general words of release, to show that anything more than the matters particularly specified was intended to be discharged, and where the particular recitals precede the general words; * * *.' 76 C.J.S. Release § 38, pp. 670, 671.
However, this distinction is not to be observed too rigidly if such a construction would defeat the intent of the parties: 76 C.J.S. Release § 38, p. 671. While great liberality is allowed in construing releases, the operation will be limited to those things within the contemplation of the parties at the time of execution of the release. See Rensink v. Wallenfang (1959), 8 Wis.2d 206, 213, 99 N.W.2d 196. The determination of intent of the parties to a release, and the scope of a release, is a question of fact for the jury.
'The scope of a release, and the intention of the parties that the release shall cover particular claims, are for the jury or other triers of the facts; but where the facts are undisputed, the scope has been held to be...
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