Poeske v. Estreen, 90

Decision Date30 June 1972
Docket NumberNo. 90,90
Citation198 N.W.2d 625,55 Wis.2d 238
PartiesWilliam G. POESKE, Appellant, v. Dan ESTREEN, Respondent.
CourtWisconsin Supreme Court

The plaintiff-appellant, William G. Poeske, an 84-year-old painter-paperhanger, brought suit against defendant-respondent, Dan Estreen, attorney-at-law, for substantial services performed in refurbishing, decorating and painting various properties owned by defendant-respondent.

The complaint alleges: 'That for many years past, and at the special instance and request of the defendant, plaintiff has furnished defendant with paint and related decorating materials necessary for painting and labor, applying the same to the many properties in and about the City of Wausau and elsewhere owned by said defendant.' The record establishes that the defendant never complained about the work done, and always promised to pay the bills submitted.

The complaint alleges: 'That said plaintiff has carried said defendant on an open account for the services and materials so furnished to defendant, the last balance of the same amounting to the sum of Six Thousand Five Hundred Eighty-eight and no/100 ($6,588.00) dollars.' The last work performed was in October, 1959, the balance due then being $8,063.14. The last payment made by defendant was one of $50.00 paid in December, 1967.

The complaint further alleges: 'That although plaintiff has made demand of defendant for payment of said account, defendant refused and still refuses to pay the same.'

The defendant made demand for a bill of particulars. In response, plaintiff submitted a ledger showing in detail each item provided, the date and all credits to defendant's account. This ledger shows that the last payment was made on December 14, 1967, at which time the balance due was $6,588.14.

Defendant filed an answer, a general denial plus an assertion of the affirmative defense of the statute of limitations alleging the cause of action did not accrue within six years of the commencement of the action. The complaint was served on defendant's attorney on September 16, 1968, less than one year after the receipt of the last payment made by defendant on the bill.

On June 19, 1970, trial was commenced. Defendant moved for dismissal of the complaint on the pleadings as a matter of law. No ruling on such motion was made, and the trial continued. Only the plaintiff called witnesses to the stand, and they established the facts as above summarized. The defense presented no testimony. The case was taken under advisement.

On February 3, 1971, the trial court granted the defendant's motion to dismiss the case on the pleadings. On February 11, 1971, judgment was entered for the defendant. On May 10, 1971, a motion to review and vacate the judgment ws denied. From the judgment made and entered, and from the order denying plaintiff's motion to vacate said judgment, this appeal is taken.

Larry W. Rader, Wausau, for appellant.

William E. Kaplan, Wausau, for respondent. Aaron E. Goodstein, Milwaukee, of counsel.

ROBERT W. HANSEN, Justice.

The trial court stated and the record overwhelmingly supports the finding that '. . . Mr. Poeske has the money coming to him and that Mr. Estreen owes it. . . .' So the sole question on appeal is the applicability of the statute of limitations 1 and its availability as a defense on this record and under these circumstances.

Judgment here was entered on the pleadings as a matter of law. In granting defendant's motion to dismiss the complaint, viewing it as a motion for judgment on the pleadings, the trial court relied upon a claimed stipulation between the parties that the action was for an 'account stated' rather than for a 'mutual and open account.' There are several things wrong with the route traveled and the result reached.

The record does not establish a stipulation between the parties. The plaintiff denies that a stipulation was entered into as to the nature of the account or claim. The record shows only this exchange:

'THE COURT: I believe there was one stipulation you gentlemen were willing to make here before we start, isn't there?

'MR. KAPLAN (defense counsel): May I, Your Honor, please confer with my client? May I have a few words?

'THE COURT: Surely.'

But the record stated no stipulation was entered. The defendant counters that his opening statement was interrupted by plaintiff's counsel who said, '. . . Just a second, may it save us some time. We'll state this is an 'account stated' . . .' However, the record shows this statement to be made by defense counsel, not plaintiff's counsel. The record may be in error, but, if so, it must be corrected before a court ruling can properly be rested upon the record. 2

The stipulation, if one there was, would not support a judgment entered 'on the pleadings.' The defendant's motion was '. . . for dismissal of the complaint based on the pleadings as a matter of law. . . .' Evidence, stipulations during trial, or matters outside of the pleadings and not incorporated therein were not to be considered in ruling on the motion. Questions of fact are not to be resolved on such motion, nor is the court to consider 'admissions or statements of a party or his counsel.' 3 The complaint asserts the account to be an 'open account,' and 'on the pleadings' it could not be found to be anything but that.

Absent a stipulation, the issue is raised by the pleadings as to whether the plaintiff's claim is based on an 'account stated' or a 'mutual and open account.' For a discussion of the distinction between the two, see the Estate of Vicen Case. 4 If the mutual dealings of the parties here, as the complaint suggests, established a mutual and open account, the six-year statute of limitations would commence to run on December 14, 1967, the date of the last credit or payment. The action was started within one year of that date, so that affirmative defense of the statute barring recovery would not be applicable. If the dealings over the years ended in an account stated, as defendant contends and the trial court found a stipulation established, it could be argued that the statute commenced to run when the last work was performed in October, 1959. However, this would require establishing that as of a certain date there was a statement admitted to be correct and a promise to pay the same. 5 Additionally, it would require negativing that subsequent acknowledgments or new promises were not made that would permit a new cause of action on such new promises. 6 On this record, no more can be said than that, if this were held following trial, to have been a stated account, it is arguable that the statute of limitations might bar recovery. We do not return the case for trial on such issue because, as we see it, on this record the defense of the statute of limitations having run is not available to this defendant whether this is an open or stated account.

On this record, the defendant is held to be equitably estopped from asserting the affirmative defense of the statute of limitations having run. The present rule in this state as to when a litigant is estopped from relying on the statute of limitations is as follows:

'(The test is) whether the conduct and representations of appellant were so unfair and misleading as to outbalance the public's interest in setting a limitation on bringing actions. . . .' 7 (Emphasis supplied.)

Under the totality of circumstances established by this record, the compelled conclusion is that the conduct of the defendant was both unfair and misleading. One begins with the many years during which the plaintiff painter-paperhanger not only did the work but bought the materials required for refurbishing and keeping presentable various properties owned by the defendant, a member of the legal profession. When a job needed doing, the defendant lawyer...

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12 cases
  • City of Cedarburg v. Hansen
    • United States
    • Wisconsin Supreme Court
    • February 11, 2020
    ...is the master of its pleadings and courts don't have the authority to act as though they are not. See, e.g., Poeske v. Estreen, 55 Wis. 2d 238, 243 n.3, 198 N.W.2d 625 (1972) (In "challenges to pleadings the court shall not ‘... give consideration to extrinsic evidence or matters outside of......
  • Greer Limestone Co. v. Nestor
    • United States
    • West Virginia Supreme Court
    • June 27, 1985
    ...the parties. See Teter v. Moore, supra; Sheldon Grain & Feed Co. v. Schuetz, 207 Kan. 108, 483 P.2d 1033 (1971); Poeske v. Estreen, 55 Wis. 2d 238, 198 N.W.2d 625 (1972); 1 Am.Jur.2d Accounts and Accounting § 16 (1962). In the case of an account stated, the statute of limitations runs from ......
  • Gieringer v. Silverman
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • May 20, 1982
    ...and misleading as to outbalance the public's interest in setting a readily determinable limitation on actions. Poeske v. Estreen, 55 Wis.2d 238, 244, 198 N.W.2d 625 (1972). Negotiations alone will not bring into play the doctrine of equitable estoppel, although a promise to pay may do so, p......
  • Butcher v. Ameritech Corp.
    • United States
    • Wisconsin Court of Appeals
    • December 21, 2006
    ...Wis.2d 447, 649 N.W.2d 626, did not argue before the supreme court that there was duress. 6. The plaintiffs cite Poeske v. Estreen, 55 Wis.2d 238, 245, 198 N.W.2d 625 (1972) (where answer raised statute of limitations defense, it was neither possible nor necessary for the plaintiff to plead......
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