Scandrett v. Greenhouse
| Decision Date | 09 November 1943 |
| Citation | 11 N.W.2d 510,244 Wis. 108 |
| Parties | SCANDRETT et al. v. GREENHOUSE et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.
Reversed.
This action was begun in the civil court, Milwaukee county, on the 24th day of September, 1942, by Henry A. Scandrett, Walter J. Cummings and George I. Haight, as Trustees of the property of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, plaintiffs, against William Greenhouse and Delmar Kelley, defendants, to recover the sum of $41.20.
There was a trial before the court, the court found in favor of the plaintiffs and from the judgment entered in the civil court the defendant Greenhouse appealed to the circuit court. In the circuit court the case was heard upon the record. The judgment of the civil court was reversed and judgment was entered in favor of William Greenhouse, defendant, against the plaintiffs for costs amounting to $27.20. From the judgment entered on the 16th day of April, 1943, plaintiffs appeal.
The facts will be stated in the opinion.
Werner J. Trimborn, of Milwaukee, for appellants.
Harry M. Silber, of Milwaukee, for respondents.
Some time prior to the 9th day of October, 1941, Delmar Kelley by his attorney, William Greenhouse, commenced an action for personal injuries in the circuit court for Milwaukee county against the trustees of the property of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company. In due course the case was assigned to the conciliation branch of the court presided over by Daniel W. Sullivan, Judge. There is a dispute between the parties as to what occurred at the conciliation meeting on October 9, 1941. Upon that question the civil court found in favor of the plaintiffs' version and that finding was not disturbed by the circuit court on review.
The facts as claimed by the plaintiffs are as follows: The conciliation meeting was attended by Rodger M. Trump, Esq., for the defendants in that suit and by William Greenhouse, Esq., for the plaintiff in that suit. It appeared after a discussion of the plaintiff's claim for damages that the compensation carrier, the Liberty Mutual Insurance Company, had an interest in the plaintiff's claim. The amount of that interest was $41.20. The plaintiff demanded $300, and the defendants offered $200. Judge Sullivan made the following note: “I suggest $250.00, William Greenhouse $300.; Greenhouse will accept $250. if ‘comp’ carrier will consent.”
Judge Sullivan further noted: “Case settled October 9th.” Counsel stated defendants would pay $250 and no more.
Mr. Greenhouse for the plaintiff in that action then stated that he would take up the matter with the compensation carrier. On the next day Mr. Greenhouse presented the release of the plaintiff Kelley at the office of the attorney for the defendant trustees and obtained a check for $250 in settlement of the case. Nothing further was said as to the consent of the compensation carrier to the settlement, counsel for the trustees assuming that the compensation carrier had been or would be paid when Mr. Greenhouse received the money and accepted the $250 in accordance with the terms of the settlement. It appeared subsequently that Mr. Greenhouse had not procured the consent of the compensation carrier or paid the claim for $41.20 of the compensation carrier. The trustees paid this claim upon demand and then made claim upon Mr. Greenhouse for reimbursement which was denied. Thereupon this suit was begun by the plaintiffs in this action, the defendants in the first action, against Delmar Kelley and William Greenhouse for the recovery of the said sum of $41.20. Service could not be made upon Kelley and the suit proceeded against William Greenhouse alone.
The trial in the civil court is a summary proceeding. The plaintiffs filed a complaint in which the facts were set out substantially as outlined. The defendant filed no answer but demurred ore tenus to the plaintiffs' complaint. At the close of the testimony the civil court found that the defendant was indebted to the plaintiffs in the sum of $41.20 and judgment was entered accordingly. No formal findings were made.
On appeal the circuit court in its opinion made the following statement:
“Plaintiffs' complaint does not allege fraud or is it contended in plaintiffs' brief that defendant Greenhouse acted fraudulently. * * *
“It does not appear in the evidence that defendant Greenhouse still has the money in his possession.”
The court concluded: “Failure to show either fraud or an express undertaking by defendant Greenhouse personally is fatal to plaintiffs' cause of action.”
It is considered that the court's conclusion rests upon a mistake of law. While it is true as the court indicated that an attorney is not ordinarily liable to third persons for...
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...representations about Becker. ¶ 42 We have held that acts can be the equivalent of a representation. Scandrett v. Greenhouse, 244 Wis. 108, 113, 11 N.W.2d 510 (1943). In Scandrett, the attorney who had represented Greenhouse in a prior suit received an offer to settle the entire suit, inclu......
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