Visser v. Koenders
| Decision Date | 03 March 1959 |
| Citation | 95 N.W.2d 363,6 Wis.2d 535 |
| Parties | Clifford VISSER et al., d/b/a West Side Lumber Co., et al., Appellants, v. John KOENDERS et al., Respondents. |
| Court | Wisconsin Supreme Court |
E. W. Hooker, Waupun, for appellants.
Ervin A. Weinke, Fond du Lac, for respondents.
It is self-evident that the trustee for a bankrupt is charged with a duty to collect debts from persons owing money to the bankrupt and, under the direction of the bankruptcy court, to apply such collections to the payment of the bankrupt's obligations. Because of certain circumstances alleged in the complaint, plaintiffs submit that in this instance the trustee does not have the usual interest in certain debts which are ordinarily due the bankrupt. These facts and circumstances are:
Koenders employed Marwitz to build a house for him. Before Koenders' payments to Marwitz were completed for the house Marwitz was adjudicated a bankrupt and defendant Calhoun was appointed trustee. Thereafter the present action was begun.
The plaintiffs-appellants are subcontractors in the construction of the house for which they furnished labor and materials. They do not assert that they gave notice of subcontractors' liens against Koenders' house.
Appellants rely on sec. 289.02(4), Stats. Applying the part material to this case, sec. 289.02(4), Stats., provides that when an owner (let us call him so) pays money to the principal contractor for improving the owner's property, such money constitutes a fund in the contractor's hands in trust for the purpose of paying the subcontractors, laborers, and materialmen whom the contractor employed to furnish services or material in improving the owner's real estate; and a diversion by the contractor of such funds to other purposes before the subcontractors, etc., have been paid is a theft by the contractor.
From this statute appellants reason that the trust exists always for the benefit of subcontractors, laborers, and materialmen,--declared so expressly by the statute when payment has come into the hands of the principal contractor, but equally declared so by equity, the owner being now the trustee, if the subcontractors, etc., are unpaid while the money is still in the owner's bank account or pocket. Hence, the plaintiffs say, they are the equitable owners of Koenders' money, to the extent of their claims; and until their claims are satisfied the trustee in bankruptcy who stands in Marwitz' shoes may not collect, and has no interest...
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Werner v. Hendree
...“Equity has a well-known maxim that equitable relief will be denied to a complainant who has slept on his rights.” Visser v. Koenders, 6 Wis.2d 535, 538, 95 N.W.2d 363 (1959); see also State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶ 25, 290 Wis.2d 352, 714 N.W.2d 900 (“equitable remedies......
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Goebel v. National Exchangors, Inc.
...to which the note relates is not changed by the revision, the note is indicative of the legislative intent."5 See Visser v. Koenders, 6 Wis.2d 535, 537, 95 N.W.2d 363 (1959).6 Pederson v. First Nat. Bank, 31 Wis.2d 648, 654, 143 N.W.2d 425 (1966); Vogt, Inc. v. International Brotherhood, 27......
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Matter of Don's Elec., Inc.
...is clear that the trust is created only with respect to funds actually in the hands of the prime contractor. See Visser v. Koenders, 6 Wis.2d 535, 537, 95 N.W.2d 363 (1959); Hribar Trucking, Inc. v. State, 22 Wis.2d 431, 126 N.W.2d 52 (1964). It is undisputed that none of the funds in dispu......
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Wisconsin Dairies Co-op. v. Citizens Bank & Trust
...presented is whether a trust was even established under the language of sec. 779.02(5) and this court's holding in Visser v. Koenders, 6 Wis.2d 535, 95 N.W.2d 363 (1959). 1 After we granted certification in this case, the Wisconsin Bankers Association (WBA) filed an amicus curiae brief in f......