Fletcher v. Crowell

42 Wis. 341

• Court: Wisconsin Supreme Court
• Decided: August 15, 1876
• Status: Published

Opinions

The following opinion was filed at the August term, 1876.

LyoN, J.

By means of the false and fraudulent representations of the defendant Babcock, the defendant Crowell was induced to pay Babcock more money than the contract between the parties concerning the construction of the road and the division of the lands among them bound him to pay. The plaintiff was not a party to the fraud, and neither requested Growell to mate such payments nor consented thereto. The fraud was that of Babcock alone, and the overpayments became a demand against him alone.

But for the submission and award, the court would doubtless have adjudged the excess of such payments a lien upon Babcock’s share of the land, or, by some other proper provision in the judgment in this or some other appropriate action, would have secured the repayment of such excess to Growell. Such overpayments were adjusted, however, by the award and the mutual releases executed in pursuance thereof, and thereby ceased to be a matter for adjustment in this action.

Had the plaintiff been a party to the arbitration, the award would doubtless have disposed of all transactions and all questions under the contract, leaving nothing to be determined by the court. But he was not a party thereto, and hence his rights are unaffected by the award. As the case stood when the award was made, he was entitled, under the contract between the parties, to nine-sixteenths, or 13,500 acres, of the 24,000 acres earned.

His release to Babcock, pendente lÁte, of his interest in an undivided half of the land, is, however, an important factor in determining the plaintiff’s rights in the land. The effect of such release, and of the award and the execution thereof by the defendants, vested in Babcock or his assignee the absolute right to an undivided half, or 12,000 acres of the land (which includes Babcock’s interest in the whole 24,000 acres), and left nothing for the court to do but to ascertain and adjudge the respective interests of the plaintiff and Growell in the remaining 12,000 acres.

It is argued by the learned counsel for the defendant Crotoell, that the contract between the parties does not constitute them partners in the construction of the road, but that it is simply a contract whereby the plaintiff and Orowell employed Babcock to construct the road at an agreed price, to be paid by them in certain proportions, each thereby making Babcock his individual agent to receive and disburse the money which he agreed to put into the adventure. It is also claimed that the proof fails to show that the money paid by the plaintiff to Babcock, or but very little of it, was actually used by the latter in the construction of the road. Erom these premises, the counsel deduce the conclusion that the plaintiff has no interest in the lands in controversy, or, at most, that he is only entitled to recover to the extent that his money was actually put into the work, if any of it was used therein.

We are .unable to adopt this conclusion. Aside from the question of copartnership, we find nothing in the contract under consideration by which the right of the plaintiff to an interest in the lands earned is made to depend upon the fact that Babcock actually used the money paid' to him by the plaintiff, in the construction of the road. ' The plaintiff paid his money to Babcock as he agreed, and Babcock constructed the road as he agreed. Why, then, should not the plaintiff have his stipulated interest in the lands earned % The fact that Orowell paid Babcock more than the contract bound him to pay, seems to be a matter between him and Babcock, which does not affect the plaintiff, and which was adjusted and settled by the award and the releases executed pursuant thereto. Hence we find it unnecessary to determine whether the agreement between the parties constituted a copartnership.

But the learned counsel further contends that, conceding our view of the contract to be correct, still the defendant Crowell is entitled to 4,500 acres of the land, or 1,500 acres more than the judgment gives him. We cannot agree with counsel in this proposition. The interest of Orowell in the whole 24,000 acres was only 4,500 acres, and the claim of counsel that he is to have that amount out of the 12,000 acres which remains to be divided between himself and the plaintiff, entirely ignores tbe fact tbat be (Crowell) released to Babcoclc bis interest in tbe half conveyed to the assignee of Babcock. That release was not counterbalanced by tbe release from Bab-cock to Croioell of bis interest in the remaining half, for tbe reason tbat Babcock bad no interest in tbe remaining half to release. As already stated, bis interest in tbe whole 24,000 acres was included in tbe half conveyed to his assignee. But Crowell bad an interest in the last mentioned half, of 2,250 acres, to be affected by bis release.

On tbe other hand, counsel for plaintiff contends tbat Crow-ell released to Babcock his interest in tbe whole 24,000 acres, and hence, tbat tbe plaintiff is entitled to tbe whole of tbe remaining 12,000 acres. Manifestly this position is untenable, for the reason tbat Crowell only released to Babcock bis interest in tbe 12,000 acres awarded to tbe latter, and not bis interest in tbe whole 24,000 acres.

"We find ourselves unable, therefore, to adopt the theory of either party, and are compelled to determine the rights of tbe parties in tbe land in question upon grounds not urged in behalf of either. Tbe releases to Babcock, executed by the plaintiff and Crowell respectively, are in form releases of tbe whole interest of tbe releasors in tbe 12,000 acres conveyed to Babcock’s assignee. But, inasmuch as tbe plaintiff’s original interest therein was 6,750 acres, and GrowelVs 2,250 acres, and the quantity of tbe land actually conveyed by such releases was only 6,000 acres, it is apparent tbat tbe releases did not dispose of the whole interest of tbe releasors therein. "We have concluded, after much deliberation and some hesitation, tbat tbe releases must be held to have conveyed tbe 6,000 acres in proportion to tbe respective interests of the releasors. That is to say, those interests being as three to one, tbe release of tbe plaintiff divested him of three-fourths of tbe 6,000 acres, or 4,500 acres, and that of Crowell divested him of one-fourth, or 1,500 acres. Our doubt has been, whether, inasmuch as Crowell released first, be should not be held to have released his whole interest in the half awarded to Babcock (being 2,250 acres), instead of 1,500 acres. But we have been unable to satisfy ourselves that it should be so held.

Deducting the 4,500 acres released to Babcock from the plaintiff’s interest in the whole of the land earned (which interest was 13,500 acres), there remaines 9,000, which is his interest in the 12,000 acres in question. A like process makes Crowell’s interest therein 3,000 acres. In other words, the plaintiff is entitled to three-fourths, and Crowell to one-fourth, of the remaining 12,000 acres of land. And so the circuit court adjudged.

By the Cowrt.- — -Judgment affirmed.