Winslow, J.
This case has been once before this court upon appeal from a judgment of nonsuit granted upon a former trial. 18 Wis. 351. It was there held that the nonsuit was improperly granted, and that the cause should have gone to the jury. As the plaintiff’s evidence only was before the court upon that appeal, and the facts which that evidence legitimately tended to establish were taken as proven for the purposes of the appeal, much that was said there is inapplicable now, because upon the present trial there was a sharp conflict of evidence upon all the material issues. ■'
The plaintiff sues defendant for one half of the amount realized from propérty seized upon an execution issued upon a judgment owned by defendant. Obviously he must show his right to money so realized by some binding con- . tract made by defendant or by his authority. It is first claimed by plaintiff that the uncohtradicted evidence shows that a contract for an equal division of the proceeds of the sale of the Bessemer stock was made by the parties. We have stated the substance of the evidence quite fully, and it must be sufficient to say here that this contention is not ■supported by the evidence. The writings introduced in evidence do not show it, because, even if Mr. Flanders’ unsigned letter be considered as binding, it does not amount to an acceptance of the plaintiff’s written proposition by reason of the fact that it does not accept the proposition first made in terms, but proposes a material change, namely, the assignment to defendant of a part of plaintiff’s judgment. That there was any oral acceptance of either proposition is flatly denied by the defendant’s attorney who , conducted the negotiations; therefore the question was •' properly for the jury. If there was any agreement it was '■an executory agreement to divide at some time in the future the proceeds of an execution sale. To rise above the level of a mere nudum factum it must be based upon a consid[464]*464eration either beneficial to the defendant or prejudicial to the plaintiff. The mere fact that plaintiff had secured a levy on the stock, even though it was valid, (prior to defendant’s levy thereon) is evidently no consideration. If he had such valid levy he could enforce it by sale or hold the sheriff liable for failure so to do. If there was any consideration for defendant’s alleged agreement to divide the proceeds of sale on his execution it must be in something that plaintiff did or refrained from doing under his alleged levy as a consideration for defendant’s agreement to divide. He must have claimed some rights thereunder and surrendered some of those claimed rights as part of the agreement. The levy alone, though legal, was no consideration to defendant for a promise to divide. The consideration, if any, was the promise to surrender rights either real or claimed under that levy. So, if the fact be that the levy was legal, still if plaintiff abandoned it and returned his execution because he concluded it was worthless, and not by virtue of an agreement with defendant to abandon it and as a consideration for a promise to divide proceeds, it manifestly could not operate as a consideration. It was then a voluntary act purely. So it became necessary for plaintiff to show that he claimed a valid levy when he made the alleged agreement of division of proceeds, and that he surrendered his claims by virtue of that agreement and as a consideration for defendant’s promise. He must show both these facts. If at the time of the alleged agreement plaintiff did not claim a valid levy, then there was no conflict of rights; there was nothing to compromise. An agreement of compromise implies necessarily adverse claims; but if plaintiff had no claim of levy he had no claim adverse to defendant; there was no controversy to settle, nothing for an agreement to act upon. A release of a levy which the owner admitted to be utterly void would be no consideration for a promise. Upon this branch of the case [465]*465the circuit judge charged the jury — rightly, as we think — that they should inquire whether the plaintiff at the time of the alleged agreement to divide claimed a valid levy upon this stock, and, if he did, whether such compromise agreement was made, and whether plaintiff caused his execution to be returned relying on such compromise; and, if either of'these propositions were found against plaintiff, it was fatal to plaintiff’s case, unless an estoppel was found, by virtue of certain transactions considered later in the-charge.
Plaintiff claims that the evidence is undisputed that he claimed a valid levy, and that hence it was error to submit this question to the jury. It is quite clear that plaintiff claimed' a valid levy up to July 2, 1888, when the sheriff’s sale was about to take place on the Mygatt execution; but after this time the question cannot be said to be entirely clear. In his letter of August 10th Mr. Maxon suggests that a 'proper levy be secured of both TarbeWs and Mygatt’s executions. Mr. Maxon himself testifies that at this time the question of the sufficiency of the first levy was discussed between himself and Mr. Flanders, and that he (Maxon) was not able to fully satisfy himself upon the point. Also that about August 20th he contemplated suing out another execution and levying thereunder, and apparently would have done so had there not been intervening executions on behalf of other creditors in the sheriff’s hands. Mr. Flanders testifies that he told Mr. Maxon several times that in his opinion the levy was invalid, and according to his understanding he (Maxon) substantially came to that conclusion himself; also that the Mygatt execution was never returned at his instance or request, and that he ■ did not know of it until after the sale of October 23d.. Furthermore, it does not appear in any evidence in the-case that the return of the execution was considered or discussed during the negotiations. We think, in this state • [466]*466of- the evidence, there was no error in submitting the question to the jury.
The circuit judge also submitted to the jury the question whether Mr. Flanders had authority to make the alleged contract of compromise. It is claimed by defendant that the uncontradicted evidence shows such authority. There certainly was- evidence from which it might properly have been found that Mr. Flanders had authority from his client, Tarbell, to make the agreement claimed; but there was also evidence to the contrary. Mr. Tarbell says that he told Mr. Flanders that if a proposition was made by Mr. Maxon which he (Flanders) thought was reasonable, “if he would submit it to me, I would state whether I would accept it or not ” Mr. Flanders testified with regard to the unsigned letter that if it was satisfactory to Maxon he would then submit the proposition to Tarbell, and if he got his authority he would make and sign the proposition. We think the evidence called for the submission of the question to the jury. The general authority of an attorney under his retainer in the cause would certainly not authorize him to make an agreement to divide with another the proceeds of an execution sale, especially where, as here, the client resided in the same city with his attorney. Weeks, Attorneys at Law (2d ed.), § 219.
The plaintiff claims that defendant is estopped from denying that there was a valid agreement of compromise or that Mr. Flanders had authority to make such agreement. This claim is founded on one or more conversations which occurred between Mr. Maxon and defendant, Tarbell, personally, at some time previous to the sale. Mr. Maxon claims that in these conversations Tarbell
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Winslow, J.
This case has been once before this court upon appeal from a judgment of nonsuit granted upon a former trial. 18 Wis. 351. It was there held that the nonsuit was improperly granted, and that the cause should have gone to the jury. As the plaintiff’s evidence only was before the court upon that appeal, and the facts which that evidence legitimately tended to establish were taken as proven for the purposes of the appeal, much that was said there is inapplicable now, because upon the present trial there was a sharp conflict of evidence upon all the material issues. ■'
The plaintiff sues defendant for one half of the amount realized from propérty seized upon an execution issued upon a judgment owned by defendant. Obviously he must show his right to money so realized by some binding con- . tract made by defendant or by his authority. It is first claimed by plaintiff that the uncohtradicted evidence shows that a contract for an equal division of the proceeds of the sale of the Bessemer stock was made by the parties. We have stated the substance of the evidence quite fully, and it must be sufficient to say here that this contention is not ■supported by the evidence. The writings introduced in evidence do not show it, because, even if Mr. Flanders’ unsigned letter be considered as binding, it does not amount to an acceptance of the plaintiff’s written proposition by reason of the fact that it does not accept the proposition first made in terms, but proposes a material change, namely, the assignment to defendant of a part of plaintiff’s judgment. That there was any oral acceptance of either proposition is flatly denied by the defendant’s attorney who , conducted the negotiations; therefore the question was •' properly for the jury. If there was any agreement it was '■an executory agreement to divide at some time in the future the proceeds of an execution sale. To rise above the level of a mere nudum factum it must be based upon a consid[464]*464eration either beneficial to the defendant or prejudicial to the plaintiff. The mere fact that plaintiff had secured a levy on the stock, even though it was valid, (prior to defendant’s levy thereon) is evidently no consideration. If he had such valid levy he could enforce it by sale or hold the sheriff liable for failure so to do. If there was any consideration for defendant’s alleged agreement to divide the proceeds of sale on his execution it must be in something that plaintiff did or refrained from doing under his alleged levy as a consideration for defendant’s agreement to divide. He must have claimed some rights thereunder and surrendered some of those claimed rights as part of the agreement. The levy alone, though legal, was no consideration to defendant for a promise to divide. The consideration, if any, was the promise to surrender rights either real or claimed under that levy. So, if the fact be that the levy was legal, still if plaintiff abandoned it and returned his execution because he concluded it was worthless, and not by virtue of an agreement with defendant to abandon it and as a consideration for a promise to divide proceeds, it manifestly could not operate as a consideration. It was then a voluntary act purely. So it became necessary for plaintiff to show that he claimed a valid levy when he made the alleged agreement of division of proceeds, and that he surrendered his claims by virtue of that agreement and as a consideration for defendant’s promise. He must show both these facts. If at the time of the alleged agreement plaintiff did not claim a valid levy, then there was no conflict of rights; there was nothing to compromise. An agreement of compromise implies necessarily adverse claims; but if plaintiff had no claim of levy he had no claim adverse to defendant; there was no controversy to settle, nothing for an agreement to act upon. A release of a levy which the owner admitted to be utterly void would be no consideration for a promise. Upon this branch of the case [465]*465the circuit judge charged the jury — rightly, as we think — that they should inquire whether the plaintiff at the time of the alleged agreement to divide claimed a valid levy upon this stock, and, if he did, whether such compromise agreement was made, and whether plaintiff caused his execution to be returned relying on such compromise; and, if either of'these propositions were found against plaintiff, it was fatal to plaintiff’s case, unless an estoppel was found, by virtue of certain transactions considered later in the-charge.
Plaintiff claims that the evidence is undisputed that he claimed a valid levy, and that hence it was error to submit this question to the jury. It is quite clear that plaintiff claimed' a valid levy up to July 2, 1888, when the sheriff’s sale was about to take place on the Mygatt execution; but after this time the question cannot be said to be entirely clear. In his letter of August 10th Mr. Maxon suggests that a 'proper levy be secured of both TarbeWs and Mygatt’s executions. Mr. Maxon himself testifies that at this time the question of the sufficiency of the first levy was discussed between himself and Mr. Flanders, and that he (Maxon) was not able to fully satisfy himself upon the point. Also that about August 20th he contemplated suing out another execution and levying thereunder, and apparently would have done so had there not been intervening executions on behalf of other creditors in the sheriff’s hands. Mr. Flanders testifies that he told Mr. Maxon several times that in his opinion the levy was invalid, and according to his understanding he (Maxon) substantially came to that conclusion himself; also that the Mygatt execution was never returned at his instance or request, and that he ■ did not know of it until after the sale of October 23d.. Furthermore, it does not appear in any evidence in the-case that the return of the execution was considered or discussed during the negotiations. We think, in this state • [466]*466of- the evidence, there was no error in submitting the question to the jury.
The circuit judge also submitted to the jury the question whether Mr. Flanders had authority to make the alleged contract of compromise. It is claimed by defendant that the uncontradicted evidence shows such authority. There certainly was- evidence from which it might properly have been found that Mr. Flanders had authority from his client, Tarbell, to make the agreement claimed; but there was also evidence to the contrary. Mr. Tarbell says that he told Mr. Flanders that if a proposition was made by Mr. Maxon which he (Flanders) thought was reasonable, “if he would submit it to me, I would state whether I would accept it or not ” Mr. Flanders testified with regard to the unsigned letter that if it was satisfactory to Maxon he would then submit the proposition to Tarbell, and if he got his authority he would make and sign the proposition. We think the evidence called for the submission of the question to the jury. The general authority of an attorney under his retainer in the cause would certainly not authorize him to make an agreement to divide with another the proceeds of an execution sale, especially where, as here, the client resided in the same city with his attorney. Weeks, Attorneys at Law (2d ed.), § 219.
The plaintiff claims that defendant is estopped from denying that there was a valid agreement of compromise or that Mr. Flanders had authority to make such agreement. This claim is founded on one or more conversations which occurred between Mr. Maxon and defendant, Tarbell, personally, at some time previous to the sale. Mr. Maxon claims that in these conversations Tarbell clearly understood that he (Maxon) understood and claimed that an agreement of compromise had been made between himself and Mr. Flanders, and that Mr. Tarbell did not dissent, but kept silent concerning Mr. Flanders’ lack of authority to [467]*467.make a binding agreement, and that he is now estopped .from denying the fact. An estoppel may undoubtedly arise from silence where one ought to speak, but the evidence is clearly insufficient to raise an estoppel here. In the first place, the time of these conversations is not proven. It was previous to the sale, but no one attempts to fix the date. They may or may not have occurred prior to the return of the Mygatt execution. In order to amount to an estoppel, the plaintiff must have relied thereon and changed his position upon the faith thereof. Simonsen v. Stachlewicz, 82 Wis. 338. There is absolutely no evidence in the case that the plaintiff placed any reliance on defendant’s silence, or took any step or changed his position in the least on account thereof. We ¿nd it unnecessary, therefore, to discuss the question of estoppel, or the charge of the court upon that question, further.
. Some exceptions are preserved to the rulings of the court upon evidence. None of these seems to us well taken, and but one requires notice. The defendant introduced evidence, under objection, tending to show that the stock levied on was worth from three to five'cents a share. The defendant had alleged in his answer that there was an agreement made between the parties on the day of and prior to the. sale, by which the value of the stock for the purpose of divisiqn of the proceeds was fixed at five cents per share, and if the same sold for any larger sum- defendant was to account to plaintiff for two and one-half cents a share only. Testimony had already been received tending to prove that such an agreement was made with Mr. Maxon. This was a surprisingly low price, and under the rule laid down in Valley L. Co. v. Smith, 71 Wis. 304, and Bell v. Radford, 72 Wis. 402, evidence showing the value of the stock was admissible as tending to corroborate the defendant’s contention. The only tenable objection to the testimony when offered was that it was out of order, be[468]*468cause defendant had not shown that Mr. Maxon had authority from his client to make the agreement, but this objection was not made. On the close of the case, the defendant having failed to prove Mr. Maxon’s authority- to make the agreement alleged, the circuit court withdrew this question from the jury, and substantially directed them that they could not find that any such agreement was made, because no authority to make it was proven. No motion to strike out the testimony was made. Under these circumstances, we do not think error can be predicated upon the ruling.
By the Court.— Judgment affirmed.