Ficks v. Purcell

160 N.W. 1058, 164 Wis. 596, 1917 Wisc. LEXIS 17

• Court: Wisconsin Supreme Court
• Decided: January 16, 1917
• Status: Published

Opinion

Eschweilee, J.

Tbe disputes between tbe parties in this litigation are as to matters of fact only, that is, whether or not at tbe time of tbe agreement in October, 1911, tbe defendant was selling whatever interest be might have in tbe business for tbe lump sum of $7,000, or whether it was understood and agreed between tbe parties that be was to receive back whatever investment be might have made, and that that was but $6,000 instead of $7,000; and secondly, whether tbe $500 note made by defendant to tbe plaintiff Fieles was as security for the bad debts of the former copartnership, or whether it was, as defendant claimed, tbe deduction in tbe purchase price from $7,000 to $6,500. Defendant further contends that tbe payments to him by plaintiffs subsequent to tlieir discovery of tbe mistake as to tbe obligations to tbe bank amount to an estoppel or waiver of any present right to recover.

No useful purpose would be served by a lengthy discussion of tbe evidence. From an examination of tbe record we are satisfied that there is support therein for the several findings of the court below and that tbe court was justified in holding that there was a mutual mistake as to tbe amount actually invested by defendant, even though any mistake be denied by the defendant.

Under the circumstances disclosed the plaintiff Fieles, who alone recovers the $1,000, is not barred by any principle of estoppel or waiver from recovering the amount of the overpayment.

There was a dispute between the parties as to the object add purpose in giving the $500 note by defendant to Ficks, and in that dispute the court found in favor of the plaintiff, and under the familiar rule that governs under such circumstances that finding must also stand.

By the Court. — The judgment of the circuit court is affirmed.