Weinhagen v. Hayes

• Decision Date: 05 December 1922
• Citation: Weinhagen v. Hayes, 179 Wis. 62, 190 N.W. 1002 (Wis. 1922)
• Parties: WEINHAGEN v. HAYES ET AL. HAYES v. WEINHAGEN.
• Court: Wisconsin Supreme Court

179 Wis. 62

190 N.W. 1002

WEINHAGEN

v.HAYES ET AL.

HAYES

v.WEINHAGEN.

Supreme Court of Wisconsin.

Dec. 5, 1922.

Appeal from Circuit Court, Milwaukee County; Edward T. Fairchild, Judge.

Action by Frederick Weinhagen against H. Jay Hayes and others individually and as executors of Eugene McFall.From judgment on accounting granting partial relief, defendants appeal.Affirmed.

This case was before this court on a former appeal, the decision being reported in 174 Wis. 233, 178 N. W. 780, 183 N. W. 162, 187 N. W. 756.The judgment of the circuit court for Milwaukee county was reversed, and the cause was remanded, with directions to the circuit court to make an accounting between the parties, and that thereupon judgment should be entered for the amount found due, and that judgment should also provide for the rescission and cancellation of the contract in suit.Upon a remittitur being filed, proceedings were had and recovery was allowed in favor of the defendants to the amount of $5,392.19.Upon the accounting, one of the items claimed by the defendants was for $20,500, a liability incurred for attorneys' fees by the defendants in the prosecution of their defense to the action begun by the plaintiff and in the assertion of the claim of the defendants as set forth in their counterclaim.The circuit court disallowed defendants' claim in this respect, and from the final judgment the defendants Hayes, Carrow, and the representatives of Eugene McFall appeal.Miller, Mack & Fairchild, of Milwaukee, Beaumont, Smith & Harris, of Detroit, Mich. (Hal. H. Smith, Melville C. Mason, and Henry C. Walters, all of Detroit, Mich., of counsel), for appellants.

John H. Paul and Glicksman, Gold & Corrigan, all of Milwaukee, for respondents.

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

The sole question presented by this appeal is whether or not the appellants are entitled to recover upon the accounting the amount of the liabilities incurred by them for attorneys' fees in defending the action begun by the plaintiff and in asserting the cause of action set out in their counterclaim,which resulted in a judgment canceling and rescinding the contract upon which the plaintiff sued, for the reason that it was tainted by fraud.In this respect the appellants make two principal claims: First, that they are entitled to it upon general legal principles; and, second, that they are entitled to it under the specific direction of this court upon the former appeal.

[1] It is claimed that the accounting directed by this court by its mandate on the former appeal is equivalent to a separate action for damages.This position of the defendants is untenable.By the mandate of this court upon the reversal of the first judgment, the defendants secured the relief for which they asked in their counterclaim and to which they would have been entitled by the first judgment rendered if the finding of the trial court had been in accordance with the determination made by this court.The mere fact that the defendants were required to appeal to this court to sustain their contention upon their counterclaim, and were successful, in no way alters the cause of action set out in the counterclaim of the defendants and upon which they finally recovered judgment.An action for rescission and accounting is not two actions; it is one.

[2] It is the further claim of the appellants that the mandate having directed that the parties be placed in statu quo, the appellants cannot be placed in statu quo until they are permitted to recover the amount of the attorney fees for which they necessarily became liable in the defense of the action begun by the plaintiff and in the prosecution of their counterclaim.In all actions begun and prosecuted for the cancellation and rescission of a contract, upon the ground of fraud, it is one of the conditions of relief that the parties be placed in statu quo.It is the contention of the appealing defendants that in such cases recovery of attorney fees is allowed.They cite, as sustaining their contention, First Nat. Bank of Hutchinson v. Williams, 62 Kan. 431, 63 Pac. 744; Collen v. Wright, 7 Ellis & Blackburn 301 (Q. B.);Godwin v. Francis (L. R.) 5 C.P. 295(Court Common Pleas); Randell v. Trimen, 18 Common Bench.786;Speading v. Nevell (L. R.) 4 C.P. 212;Bennett v. Gibbons, 55 Conn. 450, 12 Atl. 99;Roberts v. Heim, 27 Ala. 678, 683; and other cases.

[3]An analysis of these cases discloses the fact that they are mainly of two classes: First, those in which punitory or exemplary damages may be allowed and in which class of cases some courts, particularly those of Connecticut, hold that a jury may take into consideration plaintiff's expenses in the suit; or, second, those in which the complaining party has been, though the fraud of the opposite party, involved in litigation and in the prosecution thereof has incurred liability for attorneys' fees in actions other than the one in which recovery is sought....