De Voin v. De Voin

• Decision Date: 25 February 1890
• Citation: 44 N.W. 839,76 Wis. 66
• Parties: DE VOIN v. DE VOIN.
• Court: Wisconsin Supreme Court

76 Wis. 66

44 N.W. 839

DE VOIN

v.DE VOIN.

Supreme Court of Wisconsin.

Feb. 25, 1890.

Appeal from circuit court, Oneida county.

Previous to January, 1888, the parties were partners in a mercantile business at Rhinelander. At that date they dissolved their copartnership, and thereupon entered into a contract in writing, under seal, in and by which the plaintiff purchased of defendant all his interest “in the personal property, bills receivable, and all timber lands” of the firm, and agreed to pay the latter $1,450 therefor, and also to pay all indebtedness of the firm except a certain mortgage debt therein specified. The writing contains other covenants concerning certain real estate of the firm not included in such sale, but these are not material to this action. Plaintiff thereupon paid defendant $1,450 as thus agreed, and entered into sole possession of the property so purchased by him. This action, which is for money had and received, was brought to recover $500, which the plaintiff alleges he overpaid the defendant for the property thus purchased. In his complaint and testimony the plaintiff thus accounts for the mistake: He says that in the latter part of 1887, the defendant then being absent, he made an inventory of the assets of the firm, which he afterwards purchased, and the same were in voiced at $11,000. He also figured up the liabilities of the firm, which he afterwards agreed to pay, and made the same amount to $6,600. When the defendant returned, they entered upon negotiations which terminated in the above contract; and the actual agreement between them was that the plaintiff should make the purchase on the basis of the inventory, that is, the assets should be figured at $11,000. The amount of the firm liabilities should be deducted therefrom. From the balance, $1,500 should be deducted, and the plaintiff should pay the defendant one-half the residue for his interest in the firm property and business. On the basis of $6,600 liabilities, the amount to be paid defendant was $1,450, and the written agreement was drawn up and executed on that basis. He says, also, that about 10 days after the execution of such agreement he discovered an error of $1,000 in his footing of liabilities, and that the actual liabilities of the firm were $7,600, instead of $6,600, and hence that he has paid the defendant $500 too much. The defendant, in his answer and testimony, denies that such was the agreement of the parties, but alleges and testifies that the plaintiff offered to pay him $1,450 for his interest in the firm property, and to pay the indebtedness of the firm, without regard to any invoice of assets or statement of liabilities, and that their written ageement expresses their contract, and the whole of it, just as it was made. The court instructed the jury that if the $500 was paid through a mutual mistake of the parties, or was obtained from the plaintiff by the fraud of the defendant, the plaintiff would be entitled to recover. The jury found for the plaintiff, and judgment was thereupon entered for him for the $500, interest, and costs. The defendant appeals from the judgment.Bardeen, Mylrea & Marchetti, for appellant.

Alban & Barnes, for respondent.

LYON, J., ( after stating the facts as above.)

I. There seems no reason to doubt that the plaintiff paid the defendant $1,450 for the interest of the latter in the partnership property and business, in the erroneous belief that the firm indebtedness was only $6,600. The complaint alleges, and the testimony tends to prove, that when the attention of defendant...