Puffer v. Welch

• Citation: 141 Wis. 304,124 N.W. 406
• Parties: PUFFER ET AL. v. WELCH ET AL.
• Decision Date: 11 January 1910
• Court: United States State Supreme Court of Wisconsin

141 Wis. 304

124 N.W. 406

PUFFER ET AL.

v.WELCH ET AL.

Supreme Court of Wisconsin.

Jan. 11, 1910.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by George D. Puffer and others against Charles A. Welch and others. From an order discontinuing the action, defendants appeal. Appeal dismissed.

Action to recover damages for fraudulently inducing the making of an option contract between the defendant White Rock Mineral Springs Company and its stockholders, particularly the defendant Welch, on one side, and persons named as defendants on the other, for the sale by the former to the latter of the property of such corporation. Plaintiffs, by purchase, became owners in severalty of a three-sevenths interest in the contract. They claimed that Welch and the corporation misrepresented material matters on the faith of which the contract was made and, for value, came to them to their damage which they sought to recover.

Those charged as liable to respond in damages answered, among other things, to the effect that all claims under the alleged option contract, long prior to the commencement of the action were adjusted, settled and discharged as part consideration for a second option contract.

After trial of the cause had progressed to a considerable extent, an adjournment was granted, on motion of plaintiff's attorneys, for a brief period. Upon its being again taken up, one of plaintiffs' attorneys announced that he was satisfied, from his investigation, that the second contract, mentioned in the answers, was given and taken as claimed; that it precluded any recovery of damages on the first contract, and, therefore, that he would move the court for leave to discontinue. A motion was then made, or regarded as pending, for judgment in favor of the answering defendants, on the pleadings. The motion for leave to discontinue was granted. Subsequently a formal order was entered discontinuing the action with costs and denying plaintiff's motion. Later the costs were paid and the money retained. After such payment this appeal was taken.Harrison S. Green (Rossiter Lines, of counsel), for appellants.

Gill, Barry & Mahoney, for respondents.

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

While it is true that an order discontinuingan action, practically puts an end thereto as regards the plaintiff (Juneau County v. Hooker, 67 Wis. 322, 30 N. W. 357), yet it is doubtless competent for either side to have the litigation closed by a...