Turner v. Burnell

CourtUnited States State Supreme Court of Wisconsin
Citation4 N.W. 30,48 Wis. 221
PartiesTURNER v. BURNELL, Garnishee
Decision Date07 January 1880

Argued December 18, 1879

APPEAL from the Circuit Court for Winnebago County.

This was a proceeding in garnishment, the principal suit being against E. McNutt and J. B., W. G. and H. C. Killips constituting the firm of McNutt & Killips. The facts found by the circuit court were as follows: In August, 1878, J. B., H C. & W. G. Killips were partners under the name of Killips & Sons, and, as such, owners of a mill and machinery in Winneconne. Prior to that time, said firm had given plaintiff a chattel mortgage of a portion of said machinery, to secure payment of $ 1,500. Turner, the plaintiff, was a banker or broker at Winneconne, and agent for divers insurance companies, with power to issue policies; and as such agent he procured insurance, in certain of said companies, upon said mill and machinery. On the 30th of August, 1878, the mill and machinery were burned; there being then policies upon the same in three of said companies amounting to $ 2,500, viz one of $ 1,000 in the German American Insurance Company, one of $ 1,000 in another, and one of $ 500 in a third company. At the time of the loss, none of the Killipses had seen the policies or knew the amount of the insurance obtained upon the property by Turner, such insurance having been procured and paid for by him without their direction; and after the loss they "claimed" that Turner "would give them no information as to the policies or the amount of insurance, except that he claimed that all said insurance was payable absolutely to him." On the 2d of September 1878, Killips & Sons retained Burnell, who is a lawyer residing in the city of Oshkosh, and advised with him concerning their said insurance, representing to him that they expected to have trouble and perhaps litigation with Turner, and also with the insurance companies, and that they had no money to pay for a retainer, or for such service as he might render. Thereupon, at the suggestion of Burnell, it was agreed that they should assign to him all their interest in the policies in payment for any services which he might render them in any litigation they might have concerning such loss by fire; and accordingly, on that day, they executed to him an assignment of their interest in such policies, such assignment purporting on its face to be made in consideration of $ 500 in hand paid to the assignors, "and of divers other good and valuable considerations;" and, in consideration of such assignment, Burnell executed to them an agreement to render his services in conducting such litigation, and in settling with the companies or with Turner. Between the 2d and the 27th days of said month of September, Killips & Sons did advise, at various times, with Burnell, as an attorney-at-law, concerning said matters; and at some time during the same period Burnell notified the insurance companies of said assignment to him. About the 27th of said September, "it was claimed that said companies were ready and willing to pay said loss without litigation;" and on that day Turner and his attorney, with H. C. Killips, Burnell, and one or two adjusting agents of the insurance companies, met in the city of Oshkosh. The adjusting agent who represented two of the companies had drafts amounting to $ 1,500 (the amount which said two companies were to pay), which drafts were payable to the order of Killips & Sons, Burnell and Turner. In each of said policies it was written that the loss was payable to Turner, as his interest might appear, and not absolutely; but otherwise the policies were payable to Killips & Sons, the owners of the property; and Turner's interest therein was only that created by the $ 1,500 chattel mortgage above mentioned. At this meeting, however, Turner claimed that the firm of McNutt & Killips [which seems to have been the successor to Killips & Sons, though there is no finding on that point] owed him a large sum of money, over and above the amount secured by the chattel mortgage; and he claimed the right to apply to that indebtedness the excess of the insurance moneys above the mortgage debt. This claim was resisted by Burnell; and at that time Turner "finally abandoned" such claim. As no money could be obtained on said drafts unless they were indorsed by all the payees, it was agreed, by way of compromise and settlement of the matter, that in consideration of Burnell paying Turner $ 200 (which amount Turner claimed to have paid in obtaining such insurance), the latter should relinquish all claim to have any other part of the insurance money applied to the payment of the indebtedness to him not secured by said chattel mortgage; so that Turner was to receive $ 1,700 of the insurance money, and Burnell $ 800. Thereupon Turner executed the following agreement: "In consideration of $ 200 premium on policies allowed me, I hereby relinquish all claims against the German American Ins. Co. for insurance on the mill building," etc., describing the property; "and nothing above is to be construed as a release of my claim for loss upon property covered by my chattel mortgage which I still hold." This agreement was made with full knowledge of the facts, including the fact of the assignment made to Burnell by Killips & Sons; and in pursuance thereof the drafts for $ 1,500 above mentioned were indorsed by all the payees therein named, and Turner received $ 1,100, and Burnell $ 400, of the amount, less the interest on each of said sums for sixty days, which was deducted by the companies. About a week or ten days thereafter, a draft for the remaining $ 1,000 of the insurance money became payable to the order of the same payees, and was duly indorsed by them, and, in pursuance of the aforesaid agreement, Burnell received of such moneys $ 400, and Turner $ 600, less the interest for sixty days, deducted by the companies. The agreement made September 2, 1878, between Killips & Sons and Burnell, as above stated, "in the absence of any waiver on defendant's part, was void as to creditors, except a reasonable compensation to be taken out of such insurance moneys for the services of Burnell." At the commencement of these garnishment proceedings, Burnell had in his hands no property, money, effects or credits belonging to Killips & Sons or to any member of that firm. [1]

Upon these findings the court held that the assignment to Burnell, by Killips & Sons, of their interest in the policies, was good as between the parties thereto, but void as to creditors, except so far as Burnell might retain, from the moneys received under the assignment, the reasonable value of his services as attorney; that the agreement of September 27th, however, between Burnell and Turner, was a waiver of Turner's right to any of the insurance moneys claimed by Burnell, and the payment of the $ 200 by Burnell to Turner estopped the latter from claiming such right. Accordingly, the court rendered judgment dismissing the proceedings in garnishment, with costs in favor of the garnishee. Plaintiff excepted to most of the findings of fact, and to the conclusion of law that, as against Burnell, he had waived his rights as a creditor of the Killipses, or estopped himself from asserting them; and he appealed from the judgment.


H. B. Jackson, for appellant:

The assignment to the garnishee defendant was fraudulent and void; the finding of the court on this point cannot be disturbed. Cunningham v. Brown, 44 Wis. 72, 77; Ely v. Daily, 40 Wis. 52. This being the case, the $ 200 paid by him to the plaintiff was the money of the Killipses; and, being used to pay a legal obligation of theirs, it furnished no consideration for a further agreement or a waiver. Shapley v. Abbott, 42 N.Y. 447; Holden v. Putnam Fire Ins. Co., 46 N.Y. 11; Wilcox v. Howell, 44 N.Y. 398. Estoppel in pais is resorted to as a means to prevent...

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