Warder v. Baker

• Decision Date: 10 January 1882
• Citation: 54 Wis. 49,11 N.W. 342
• Parties: WARDER AND OTHERS v. BAKER, GARNISHEE, AND OTHERS.
• Court: Wisconsin Supreme Court

54 Wis. 49

11 N.W. 342

WARDER AND OTHERS

v.BAKER, GARNISHEE, AND OTHERS.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court, Dane county.

Lewis, Lewis & Hale, for respondents.

Smith, Rogers & Frank, for appellants.

TAYLOR, J.

The plaintiffs and respondents have obtained judgment against the appellants Taylor & Taylor, and also against Lewis Baker as garnishee. The appellant Baker was summoned as garnishee before judgment was obtained in the action against the Taylors. The appeal is from the judgment rendered against the garnishee. The issue between the respondents and the garnishee was tried by a jury. Among other things the learned circuit judge instructed the jury as follows: “If you find that the witness Ellsworth informed defendant Baker that he was the agent of the plaintiffs in this action, and that he was making the inquiries testified to by him on their behalf with a view of commencing garnishee proceedings against said Baker if he should have any surplus in his hands due to Taylor Bros. after paying any indebtedness which they might owe said Baker, but that he would not commence garnishee proceedings against said Baker, and would make no expense for the plaintiffs, if no surplus would remain in said Baker's hands after so paying any indebtedness to said Baker; and if you further find that said defendant Baker then stated to Mr. Ellsworth that there would remain in his hands, when both policies should be paid, about the amount of one of said policies, or words to that effect; and that Mr. Ellsworth acted on said statement, believing it to be true, and instituted his garnishee proceedings, relying upon them, and that Mr. Baker made said statement intending it to be acted upon,--then I instruct you that said defendant Baker is estopped as to the plaintiffs in this action from denying that he held said sum of about $1,000 in trust for said Taylors, and the plaintiffs are entitled to a verdict for the amount of the indebtedness due them on the judgment against the defendant Taylor.”

This instruction was duly excepted to, and is alleged as error and relied upon by the learned counsel for the appellants as a ground for reversing the judgment. Many other errors are assigned by the counsel for the appellants, but as we have concluded that the judgment must be reversed on account of the error in this instruction, we do not think it necessary to pass upon the other assignments of error. We think the instruction given by the learned circuit judge, above quoted, that the facts therein stated, if found in favor of the plaintiffs, would estop the garnishee from denying his indebtedness to the principal defendants, and entitle the plaintiffs to a judgment against him for the amount of the judgment against the principal defendants, cannot be sustained by authority or any well-settled principles of law. If it can be supported as good law, then we can see no good reason why any defendant in an action, who has, before suit brought, fully and fairly admitted to the plaintiff that he was indebted to him in any certain amount, should not, upon the trial of the action subsequently brought, be estopped from showing that his admissionwas false, or made under a mistake of the facts; and yet it is every-day practice to permit defendants not only to contradict their admissions made before trial, but to go further, and contradict their most solemn promises in writing by showing that there was in fact no consideration for such promise.

The only ground for holding the garnishee estopped is that in reliance upon his admissions the plaintiffs commenced garnishee proceedings against him. There is no proof in the case that the plaintiffs, in the garnishee proceedings, have suffered any injury by reason of the statements or admissions made by the garnishee; that he has lost any remedy which he might otherwise have taken against the principal defendants, or been in any way prejudiced otherwise than the cost they have been put to in serving the garnishee process in the case. The evidence further shows that the garnishee papers had been all prepared in blank, ready for service, before the statements were made by the appellant which are relied upon as an estoppel, and that they were sworn to and served immediately after the statements were made; that at the time the garnishee proceedings were served the plaintiffs had not obtained judgment against the original defendants, and did not obtain such judgment until some months after the garnishee had answered and denied all liability as garnishee. The proceedings were commenced against the garnishee April 24, 1880, and judgment was rendered against the original defendants November 19, 1880.

The record presents this question, and, as we think, no other: Is a garnishee estopped from denying his indebtedness to the principal defendants in the action because he has admitted such indebtedness previous to the commencement of the action against him to the plaintiffs, their agent or attorney having reason to believe at the time of making such admission that the plaintiffs would act upon them and commence proceedings against him as garnishee, when it does not appear that the plaintiffs have suffered any injury in any way by their reliance upon such admission, other than the mere expense of serving the papers in the action? After a careful consideration of the subject, and of the authorities cited by the learned counsel for the respondents to sustain the proposition, we are constrained to answer the question in the negative.

If an estoppel is created upon the facts of this case, then we see no reason why the estoppel would not arise upon like admissions made by a defendant in any other action, and in any action to recover a sum of money claimed to be due from the defendant to the plaintiff. An admission of indebtedness, made by the defendant before suit brought, would be equally conclusive of the right of the plaintiff to recover, especially where there was any dispute or uncertainty as to the fact of the indebtedness for which the action was brought, as it might well be presumed, in such case, that the plaintiff brought the action relying upon the admissions made by the defendant. If such were the rule, then the plaintiff ought to be permitted to plead in the first instance, not that the defendant owed him any debt, but that previous to the commencement of the action he admitted his indebtedness, and, relying upon such admission, he brought his action to recover the same. We have not been able to find any precedent for such a complaint. Yet we are forced to admit that the learned counsel has cited us to some decisions, and we have found one not cited, which seem to give countenance to that doctrine. Meister v. Birney, 24 Mich. 435-440;Finnegan v. Carraher, 47 N. Y. 493-499;Hall v. White, 3 C. & P. 136. But, when examined, we think they fall far short of sustaining the views of the learned counsel for the respondent.

Meister v. Birney was an action to recover rent. The evidence showed that the lessee had turned over the leased premises to the defendant for one month, for which the rent had been paid. The landlord had agreed to make certain alterations, but he declined to make the same unless he had some further assurance that the future rents would be paid. The defendant, before the first month was out, told the plaintiff the lease had been assigned to him and he would pay the rent. The plaintiff thereupon completed the repairs, and the defendant stipulated in writing to the effect that the lessee had assigned the lease to him and he agreed to comply with its terms. Soon after the second month of the lease commenced, the defendant surrendered the possession to the original tenant, without giving any notice to the landlord, who commenced his suit for the rent of the second month. Justice Cooley, in delivering the opinion, held in effect that the promise on the part of the defendant to pay the future rent was void, because he had no assignment of the lease except for the month the rent for which had been paid. He was not in possession of the premises during the second month, and making the repairs by the plaintiff was no consideration for the defentant's promise, because by the terms of the lease he was bound to make them. But the learned judge held the defendant liable because he says the plaintiff had the right to rely upon his statement that he had purchased the lease and would pay the rent, and was not afterwards informed by the defendant, before suit brought, that he had surrendered the possession to the original tenant. The learned judge uses the following language; “Although he surrendered the possession to Rosa Meister after his month was up, he did not inform the plaintiff of that fact, and we are not apprised by this record that plaintiff was notified of the surrender before this suit was brought.”

The construction we put upon the judge's finding is that the plaintiff, when he brought this suit, believed and relied upon the defendant's averment that he owned the term and supposed him in possession, and to be in default in the payment of rent which it belonged to him to pay. If such was the fact; if the plaintiff was induced to incur the expense of this litigation in reliance upon a promise to pay which was apparently legal and valid, and upon a statement of the defendant establishing such liability, which, though not true, he had reason to believe to be so, and to rely upon,--we think the defendant cannot be permitted in this suit to deny the truth of such statement, and thereby not only evade his promise, but impose upon the plaintiff the expenses of the suit. Expenditures in litigation may as reasonably constitute the basis of an estoppel as any other expenditures, and in this case it is just and equitable that they be held to do so.

No authorities are cited by the learned court to sustain the position taken, and it appears that the plaintiff was...