Patulski v. Bellmont Realty Co.

164 N.W. 841, 166 Wis. 188, 1917 Wisc. LEXIS 190

• Court: Wisconsin Supreme Court
• Decided: October 23, 1917
• Status: Published

Opinion

RoseitbeRRY, J.

Appellants contend that the judgment should be reversed (1) because the findings set out are against the clear preponderance of the evidence, and (2) be•cause the court erred in rejecting testimony offered by the defendants and in admitting evidence offered by plaintiffs.

Under the rule laid down in Armstrong v. Morrow, ante, p. 1, 163 N. W. 179, when the plaintiffs established, as it is admitted they did, the fact of the confidential relationship between the deceased Anna R. Bours and the defendant Bradshaw, her agent and adviser, they established a prima facie case, and it was then incumbent upon the defendant Bradshaw to show affirmatively that no advantage was taken ■of the confidential relationship which existed between himself and the deceased and that in making the deeds of the property in question the deceased acted with full knowledge, upon proper advice, that no deception was practiced, and that the consideration was adequate.

The evidence is not stated in' detail. • To do so would extend this opinion to great length. Such statements are of no value in cases such as this, except as they may convince counsel that the matter has been fully considered. Each ■case must rest upon its peculiar facts. The facts are never .alike in two cases. Long statements of the facts are quite .as likely to lead to confusion as they are to lead to certainty in the application of general principles in subsequent cases. This court, realizing the burden cast upon the profession by unnecessarily long opinions, endeavors to conform to the demand for shorter opinions. All cases are thoroughly and carefully considered, and the brevity of the opinion is not ■evidence to the contrary. We are of the opinion that tho trial court was right in its conclusion that the defendant Bradshaw failed to establish his contention that he had a just claim and demand against the deceased, that he had settled with her for said sum, and that the deed of July 3, 1914, was given in consideration of such indebtedness. We are further of the opinion that the finding of the court to the effect that the quitclaim deed of December 13, 1915, was not delivered to the defendants or either of them with any purpose on the part of said deceased to convey title to the property described therein, is in accordance with the clear preponderance of the evidence.

2. The court excluded evidence offered by appellants, on the ground that it related to transactions between the deceased and the witness Bradshaw and that the witness was therefore incompetent under the provisions of see. 4069, Stats. We have carefully examined the record, particularly the parts called to our attention in briefs of counsel. It appears that the witness Bradshaw was examined as an adverse party under sec. 4068; that upon his examination he was asked by respondents to testify as to many transactions which he had with third persons relating to the business which he did for the deceased, but it does not appear that he was examined as to transactions had directly with the deceased, testimony as to which, when offered by defendants, was excluded by the trial court. The trial court properly excluded the testimony offered.

A witness was permitted to testify to conversation with the deceased when Bradshaw was not present. While this should not have been permitted, nevertheless its admission does not constitute reversible error where the trial is before the'court without a jury, as in this case, and there is competent evidence to ^support the court’s findings, as there is here.

By the Court. — Judgment affirmed.’