Sanger v. Dun
| Decision Date | 28 November 1879 |
| Citation | 3 N.W. 388,47 Wis. 615 |
| Parties | SANGER and others v. DUN and others |
| Court | Wisconsin Supreme Court |
APPEAL from the County Court of Milwaukee County.
On the 5th of September, 1874, plaintiffs, at the city of Milwaukee put into defendants' hands, for collection, a claim, in the form of an account, against L. P. Rogers & Bros., of Foxburgh, Pa. Defendants forwarded the claim to an attorney at St. Petersburgh, a village in the same county as Foxburgh who collected the whole amount of the claim, but never paid over any part of it to either the defendants or the plaintiffs. This action was brought to recover the amount from defendants. The complaint alleges that at the time when such claim was put in their hands, defendants' business was "the collection of all kinds of debts in all parts of the United States;" that, at and before said date they urged plaintiffs to place in their hands for collection accounts against persons residing in or out of this state representing that they had extraordinary means and facilities for the speedy collection of claims against any person in any part of the United States, and assuring plaintiffs that all claims so placed in their hands should be promptly collected, and the proceeds promptly paid over; and that plaintiffs gave defendants, for collection, the claim in question, at their request and in reliance upon said representations, etc.
The answer was, in substance, that plaintiffs, when they requested defendants to forward said claim for collection, entered into a written agreement with defendants, whereby the former agreed that the latter should transmit said claim for collection, by mail, to an attorney, for the account and at the risk of plaintiffs; that the attorney to whom it was transmitted by defendants, was a lawyer of good standing and repute in his profession, and defendants had at the time no knowledge or information contrary to his general reputation for integrity; and that the moneys collected by him had not been lost through any neglect or default of defendants.
The character of the two papers respectively accepted and signed by plaintiffs at the time when the claim in question was left with defendants for collection, will sufficiently appear from the opinion. Plaintiffs' evidence tended to show that they had not read these receipts or become aware that they contained the clause relied upon by defendants, until after their claim had been collected by the attorney to whom it was sent. In its charge to the jury, the circuit court stated that these papers "were not merely receipts, but had provisions in them which amounted to a contract;" that if the contract between the parties was that expressed in the receipts, plaintiffs could not recover, unless it further appeared that defendants' agent to whom the account was sent, was, to defendants' knowledge, a dishonest and unfit person; but that if the jury should further find, in reference to the restrictive clause relied on by defendants, that plaintiffs, when they accepted and signed the respective receipts, did not understand that they contained such a clause, then defendants were liable for the amount collected by the attorney, whether they did or did not know of his incompetency or dishonesty.
There was a verdict for the plaintiffs; a new trial was denied; and defendants appealed from a judgment pursuant to the verdict.
Judgment reversed and new trial ordered.
For the appellants, there was a brief by Finches, Lynde & Miller, and oral argument by Mr. Lynde. They contended, 1. That upon the question whether, if the account had been left by plaintiffs with defendants for collection without any special contract, defendants would have been liable for the acts of the attorney employed by them, there is a conflict of authorities; but that the weight of authority in this country is against the liability. Stacy v. Dane Co. Bank, 12 Wis., 633; Fabens v. Mercantile Bank, 23 Pick., 330; Dorchester Bank v. N. E. Bank, 1 Cush., 177; Warren Bank v. Suffolk Bank, 10 id., 582; East Haddam Bank v. Scoville, 12 Conn., 303; Agricultural Bank v. Com. Bank, 7 Sm. & M., 592; Citizens' Bank v. Howell, 8 Md., 530; Hyde v. Planter's Bank, 17 La., 560; 2 Rob. (La.), 294; Bellemire v. Bank of U.S. 4 Whart., 105. 2. That a party to a written contract cannot be permitted to prove that he did not read it or know its contents when he signed it. See Upton v. Tribilcock, 91 U.S., 50, citing Jackson v. Croy, 12 Johns., 427; Lies v. Stub, 6 Watts, 48; Farley v. Bryant, 32 Me., 474; Coffing v. Taylor, 16 Ill., 457; Stapylton v. Scott, 13 Ves., 427; Alvanly v. Kinnord, 2 M. & G., 7; S. C., 29 Beav., 490. See also Germania F. I. Co. v. R. R. Co., 72 N. Y., 90; Hill v. Railroad Co., 73 id., 351; Wheaton v. Fay, 62 id., 283; Grace v. Adams, 100 Mass., 505; Winslow v. Driskell, 9 Gray, 363; McCormack v. Molburg, 43 Iowa, 562; Bell v. Byerson, 11 id., 233; Rogers v. Place, 29 Ind., 577; Nebeker v. Cutsinger, 48 id., 436; Bank of Washington v. Triplet, 1 Pet., 30; Kerr on F. & M., 77. To escape liability upon the contract, mistake or fraud in its execution must be both alleged and shown. Armstrong v. Grand Trunk R'y Co., 18 Am. Law Reg., N. S., 439; L. & N. Railroad Co. v. Brownlee, 9 Cent. L. J., 101; Kirkland v. Dinsmore, 62 N. Y., 179; Hill v. Railway Co. and Germania F. I. Co. v. Railway Co., supra. 3. That the contract for a limited service and a limited liability was valid. Stacy v. Dane Co. Bank, supra; Bradstreet v. Everson, 72 Pa. St., 134-5.
For the respondents, there was a brief by Markhams & Smith, and oral argument by E. P. Smith. They contended, 1. That where persons holding themselves out as a collecting agency receive accounts for collection by their agents, they must be regarded as undertaking to transmit for collection to a faithful and responsible agent. Bradstreet v. Everson, 72 Pa. St., 124; Riddle v. Poorman, 3 Penn., 224; Cox v. Livingston, 2 W. & S., 103; Krause v. Dorrance, 10 Barr, 462; Wingate v. Mechanics' Bank, id., 104; Rhines v. Evans, 16 P. F. Smith, 192; Lewis v. Peck, 10 Ala., 142; Pollard v. Rowland, 2 Blackf., 22; Cummins v. McLain, 2 Ark., 402; Wilkinson v. Griswold, 12 Sm. & M., 669; Montg. Co. Bank v. Albany Bank, 8 Barb., 396. Cases like Fabens v. The Mercantile Bank, 23 Pick., 330, and other bank cases cited for the appellants, are greatly controlled by "the general custom of merchants and bankers, and the implied obligations upon the latter resulting from their relations," as is stated by SHAW, C. J., in the Fabens case. But some authorities hold that even a bank sending paper to another bank for collection, is liable for the malfeasance or negligence of the latter as its agent. Bank of Wash. v. Triplet, 1 Pet., 25; Allen v. Merchants' Bank, 22 Wend., 215; Bellemire v. Bank of U.S. 4 Whart., 105, 513; Van Wart v. Woolley, 3 Barn. & Cress., 439. 2. That the receipts relied upon by defendants would not bear the construction contended for by them; but that if thus construed they would permit the defendants to take advantage of their own wrong, and would be void as contrary to public policy. Candee v. W. U. Tel. Co., 34 Wis., 471-5; True v. Int. Tel. Co., 60 Me., 9; Tyler v. W. U. Tel. Co., 8 Alb. L. J., 181; Birney v. N. Y. & W. Tel. Co., 18 Md., 341; Ellis v. Am. Tel. Co., 13 Allen, 226; Sweatland v. Ill. & M. Tel. Co., 27 Iowa, 433; U. S. Tel. Co. v. Wenger, 55 Pa. St., 262; Redpath v. W. U. Tel. Co., 112 Mass., 71; Clarke v. Holmes, 7 H. & N., 938; Scott & J. on Tel., §§ 201-2. Such a contract, so construed, would also be in violation of the doctrine that a principal is estopped from denying his liability through an agent, especially when the agent has been guilty of fraud. York v. Railroad, 3 Wall., 107; Transp. Co. v. Downer, 11 id., 129; Erie & W. Transp. Co. v. Dater (S. C. Ill.), 8 Cent. L. J., 293.
We are all clear in the opinion that this case must be decided upon the receipts offered in evidence, which constitute the contract, and fix the rights and liabilities of the parties. These receipts are plain and distinct in their language, and no good reason was suggested on the argument why they are not valid and binding upon the parties executing them. True, it was said by the learned counsel for the plaintiffs, that the proof shows that Mr. Rockwell did not read the receipts, or know or understand that they contained a clause restricting the liability of the defendants. To this remark we answer in the words used by this and other courts when considering a similar question. It is not claimed that he was overreached or deceived otherwise than in the fact that he did not read or understand the contract which he signed; but that was his own negligence. It will not do for a man to enter into a contract, and, when called upon to abide by its conditions, say that he did not read it when he signed it, or did not know what it contained. Fuller v. Madison Mutual Insurance Co., 36 Wis. 599; Upton v. Tribilcock, 91 U.S. 45, 23 L.Ed. 203; Wheaton v. Fay, 62 N.Y. 275; Germania Fire Insurance Co. v. M. & C. Railroad, 72 N.Y. 90; Hill v. S., B. & N. Y. Railroad, 73 N.Y. 351.
Of course we are considering a case relieved from all pretense of fraud or imposition, for nothing of the kind was used in procuring the contract. The only reason for claiming that the plaintiffs are not bound by the restrictive clause in the receipts is, that Rockwell did not read them or understand that they contained such a restrictive clause when the papers were executed. But if he failed to read or understand the contract, it was his own fault, and the plaintiffs alone are responsible for the omission. Therefore under the circumstances, we all think that the...
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