Wheeler & Wilson Mfg. Co. v. Winnett

• Decision Date: 01 July 1902
• Citation: 91 N.W. 514,3 Neb. [Unof.] 293
• Court: Nebraska Supreme Court
• Parties: WHEELER & WILSON MFG. CO. v. WINNETT.

3 Neb. [Unof.] 293

91 N.W. 514

WHEELER & WILSON MFG. CO.

v.WINNETT.

Supreme Court of Nebraska.

July 1, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Lancaster county; Frost, Judge.

“Not to be officially reported.”

Action by Hudson J. Winnett against the Wheeler & Wilson Manufacturing Company. Judgment for plaintiff. Defendant brings error. Affirmed.A. W. Lane, for plaintiff in error.

Stewart & Munger, for defendant in error.

BARNES, C.

This action was commenced in the district court of Lancaster county by the defendant in error to recover of the plaintiff the sum of $188.29, and interest thereon from the 20th day of June, 1899. The action was based upon the following facts, and a certain contract hereinafter set forth: It appears that prior to October 23, 1895, one A. F. Leiss, who was engaged in the business of selling sewing machines and musical instruments in Lincoln, Neb., was indebted to both parties to this suit. It also appears that Leiss had theretofore given a bond to the plaintiff in error on which the defendant was surety, with a contingent liability thereon in favor of the plaintiff; that Leiss had given both parties a chattel mortgage on his stock, and had turned over to the defendant, Winnett, certain notes and contracts as collateral security for his contingent liability above mentioned; that the face value of the notes and contracts so held by Winnett as collateral was about $2,500. On October 23, 1895, the parties came together, and, in settlement of their several claims against Leiss and each other, entered into the following agreement, to wit: “Articles of agreement between the Wheeler & Wilson Manufacturing Company, a corporation of the state of Connecticut, and Hudson J. Winnett, of Lincoln, Nebraska, made this 23d day of October, 1895, witnesseth that whereas, the said H. J. Winnett has a note secured by chattel mortgage from A. F. Leiss to secure the sum of $1,624.34 represented by a promissory note of said Leiss for said amount now owing said Winnett, and also has taken collateral notes from said Leiss to indemnify said Winnett from any liability of said Winnett to the said Wheeler & Wilson Manufacturing Co., arising out of any claims and demands they may have against said Winnett as debtor or surety or in any other way whatever: Now, therefore, it is agreed that: (1) The said Wheeler & Wilson Manufacturing Co., in consideration of the agreements herein, do hereby release and discharge the said Winnett from any and all liability to said company arising or claimed on any account or debt or claim of any kind whatever, and hereby surrenders to said Winnett all evidences of indebtedness. (2) The said Winnett assigns and turns over to said Wheeler & Wilson Manufacturing Co., without recourse, his said note and mortgage, securing same for $1,624.30 from said Leiss. (3) Said Winnett also assigns and turns over without recourse all collateral notes and contracts held as security from said Leiss for said possible liability of Winnett. (4) The said collateral notes and contracts are to be held by the Wheeler & Wilson Company in trust for the following purposes: First. To pay out of the first proceeds derived from their collection the sum of $200.00 owing the Chicago Cottage Organ Co., or such part as may be unpaid of the $200.00 to the Chicago Cottage Organ Company. Second. To next pay, out of the said proceeds of the collection of said collateral notes and contracts the sum of $1,300.00 to said Winnett, a debt owing him from said Leiss. When said sum of $1,500 is paid, the said Winnett has no further interest in said collateral. Third. The said collateral is to be left with Abbott, Selleck & Lane to collect, and the collection is to be without expense to said Winnett in any way, and the $1,300.00 is to be paid to said Winnett out of the proceeds of said collection as fast as collected by said Abbott, Selleck & Lane. Witness our hands this 23d day of October, 1895.”

It further appears that said collateral notes and contracts were placed in the hands of Abbott, Selleck & Lane, as provided by the terms of said contract, who thereafter collected a portion of the same, and turned over to the Chicago Cottage Organ Company the $200 mentioned in the agreement in full, according to its terms; that the whole amount collected by the attorneys was $996.51; that the sum of $188.29 was retained by them for fees and expenses incurred in collecting the several claims which went to make up that amount; that the $996.51, less the $200 paid to the organ company and the fees and expenses thus retained, was turned over to Winnett. It incidentally appears that nothing more can be collected on the collateral notes and...