Schriber v. Le Claire

• Decision Date: 12 October 1886
• Citation: 29 N.W. 889,66 Wis. 579
• Parties: SCHRIBER v. LE CLAIRE AND OTHERS.
• Court: Wisconsin Supreme Court

66 Wis. 579

29 N.W. 889

SCHRIBER

v.LE CLAIRE AND OTHERS.

Supreme Court of Wisconsin.

October 12, 1886.

Appeal from circuit court, Brown county.

TAYLOR, J., ( dissenting.)

After a careful reading of the evidence in this case, and of the argument in the very able opinion written by Justice CASSODY, I am unable to argue that the evidence shows that the relation of mortgagor and mortgagee existed between the respondent and the appellant Le Claire in respect to the lands in question. The only witnesses in regard to the transactions between the parties, other than the written contracts made, and the written communications between the parties after the making of the contracts, are the respondent on the one side and the appellant Le Claire on the other.

Schriber testified as to what took place before the written contracts were made, as follows: “In the fall of 1882, forepart of October, Mr. Le Claire came to me with these minutes. He claims that he asked me for a loan. I don't recollect that he said anything to me about borrowing money. He might have said so, but I don't believe it. I don't know; I don't recollect it. He spread his minutes out before me. He says, ‘See I have got some nice land I would like to have entered;’ and I says, very likely, ‘I don't like to enter lands I don't know anything about, and I have got taken in here only a short time ago,’ which I really had; and I refused on that account at first. Then I asked him, ‘Why don't you get them entered at home?’ ‘Well,’ he says, ‘I have had some land entered by Mr. Beyer--a gentleman by the name of Beyer--and Smith, and I have always had the misfortune of their gobbling up all there was in it, and I would like to have you enter these lands, and give me a fair show.’ Well, after considering the matter duly, I concluded that I would do so. He gave me the minutes, and I said: ‘How are we going to figure this now?’ I wanted an interest in the land. He says, ‘All right, of course that is understood that you shall have an interest in the land;’ and he proposed then to figure it on the basis of about what the pine was worth,--$2 per thousand; but his estimates showed a good deal of Norway. He concluded that that was about the right figure,--so put it at about $2 per thousand. I agreed to that, and I took these minutes from him, sent my money in a draft to Madison, and some of it to Menasha, and entered these lands. Subsequently we executed this contract,--the first contract; in the spirit that we talked about in the arrangement of copartnership, you might say that we went into this matter. It would look very queer of a man of my make, that I would lend a man money at ten per cent. interest on that kind of security. If I wanted to lend the money, I would have asked him for security in addition to the purchase money of that land,--would not have taken it, under no account; and that was done in the first lot, in this case. In the second lot of lands, when he came around again, we went through the same performance. There was nothing said about the understanding, but what it was the same as before; and I think, on the Menasha lot of lands, I sent a man from the office with the money to the land-office. My boy had the money from me in his pocket, or a draft,--I don't remember which,--and I got, in due time, the certificates and papers. I did the whole transaction, on my part, more to help Mr. Le Claire, on the statement that he had made to me ‘that he had never made much on such transactions that he had been in with other people.’ Never loaned Mr. Le Claire any money directly. He occasionally had some paper that belonged up in our county, and it may be that once or twice, on the indorsement of Mr. Beyer, I let him have some money; that was my bank transaction. At the time of entering these lands I loaned him no money. I loaned him money subsequently. There wasn't anything particular said about expense at the time of entering these lands; I paid the expenses. There was nothing said about the risk; I took the risk. This arrangement was made in this way, because, in transactions of such nature, I had to take considerable risks. I took the whole matter on his say so. All the expense of entering the lands, and all the work done in entering them, was done by me. There was nothing at all said about usury at that time. * * * I did not agree to advance the money to enter the land. No advancing about it. I was the party who had the money, and I was to enter the lands with that money, and have an interest in it. The agreement was in accordance with whatever the arrangement was between him and I. In addition to the interest I was to have in the land, I was also to have back my money; that was in the original agreement. I was to have back my money which it cost me to enter the land with. You didn't state it correct. I was to have back the purchase price. I was to have no interest on the money which I invested, unless the interest in the land gave me an interest,--a third interest in the land. I was to have a third interest in the land at the expiration of one year. That is a fact. The agreement which I executed contained the purchase price.”

The defendant Le Claire testified on his cross-examination as follows: “I had looked over every piece of these lands myself. I have been over the lands to estimate the timber on them. I have estimated the pine. I knew what was on the land when I went to Mr. Schriber, the plaintiff. I guess Mr. Schriber was cashier of that bank at Oshkosh at the time. He did not claim to know anything about these lands. He had never been on them, that I know of. I had seen him before. I had no business with him before, except I drew out money from the bank. I had no business relations with Mr. Schriber individually. At that time I lived at Oconto. I knew at the time I went to Mr. Schriber that the value of the land was a great deal in excess of what the cost price of it was. When I came to Mr. Schriber, and asked for a loan, he refused it. At the time I went to Mr. Schriber he didn't word it exactly that ‘the only thing he would do would be to go into this matter as a speculation with me, and he to furnish the money, and I furnish the minutes, and then divide the profits.’ I said before what the agreement was. That was not the gist of our agreement. The contract was, as I said, that, in a transaction of that kind, he wanted a little more than ten per cent. He did not say to me that he would not let me have the money on this security unless he had a chance to make some profits out of it. He did not tell me that he would not let me have the money at ten per cent. He wanted one-third of the profit. I don't know as he said he would not do any different, but he said he wanted a share in it,--he wanted a part of it. He would not loan me the money. I had to pay the purchase money back, but I expected to make enough to pay my expenses. I could not say that I expected to make about one-half the proceeds on the deal after paying back Mr. Schriber the amount. I didn't offer him anything except my time. I didn't offer him any money,--merely my minutes. These minutes contained the descriptions of the land, and estimates of the amount of pine timber on the respective forties. When I went up with the young man sent by Mr. Schriber, I believe he entered the land. I think he went up there for Mr. Schriber. I didn't pay him, and I don't know if Mr. Schriber did; don't know anything about it. The lands were entered at two different times. I don't remember, now, whether this was the first or second lot, that I went there. I only went there...