Pietsch v. Sangor

181 N.W. 312, 173 Wis. 301, 1921 Wisc. LEXIS 61

• Court: Wisconsin Supreme Court
• Decided: February 8, 1921
• Status: Published

Opinion

Owen, J.

For consideration, th£ judgment may be divided into ■ three parts: first, $78.48 rendered against the defendant B. W. Sangor as administrator; second, $500 rendered against him as administrator; and third, the same amount rendered against B. W. Sangor personally. As to the first part, the civil court found that extras to the amount of $78.48 were furnished by the plaintiff. This was affirmed by the circuit court. We think the evidence sustains the finding, and nothing further need be said with reference to this part of the judgment.

Should judgment have been rendered against B. W. Sangor for the amount of $500, with interest from the date of the note? This turns upon the question whether the defendant B. W. Srngor had a right to demand of the plaintiff the execution of a further release or waiver of lien as a condition precedent to the payment of the amount of the note. In the collateral agreement executed concurrently with the note occurs the following:

“It is hereby understood that upon payment to said Ferdinand Pietsch of said note, said undersigned, Ferdinand Pietsch, waives his lien for the payment of the above amount, in the above described property for all the iron and other materials furnished to Lex Brothers as contractors.”

The civil court held that this called for the execution of a further release or waiver by Pietsch before he could insist upon the payment of the note. The circuit court held that the language quoted in and of itself constituted a waiver of the lien, to become effective upon the payment of the note. We agree with the construction placed thereon by the circuit court, and we think that upon the payment of the note the provision quoted became a self-executing waiver or release. Furthermore, the payment of the $500 note in and of itself extinguished the lien, and the execution of a waiver therefore became a superfluous formality. We therefore hold that the defendant B. W. Sangor had no defense to the action.

But we have been unable to find any warrant in the record for the judgment against the estate for the sum of $500. The theory upon which the circuit court rendered judgment for this amount against the estate does not very plainly appear. But the respondent seeks to justify it on the following grounds: When Lex Brothers defaulted, Sophie K. Sangor prosecuted an action against the surety company to recover, on the bond, and in that action B. W. Sangor testified that he had been obliged to pay this $500 to the plaintiff, and it is conceded in this action by B. W. Sangor that the $500 was included in the judgment recovered against the surety company. It is claimed by respondent that he is entitled to recover in this action for money had and received, on the theory that the estate received from the surety company the $500 to which plaintiff is entitled. The evidence with reference to this transaction is very meager. It consists entirely of admissions made by the defendant B. W. Sangor. He admits that judgment was recovered against the surety company, but the record does not disclose the amount thereof. He admits also that the $500 was included in the judgment. He denies that the entire amount of the judgment has been paid. He says: “Parts of it was paid and part is still unpaid, in which Lex Brothers is still liable to the extent of about thirty-five (hundred) or four thousand dollars. They paid about fifty-five hundred dollars. That was in settlement as compromise.” He then testified as follows:

”Q. And to help make up the $5,500 you testified paying $500 to Mr. Pietsch? A. No, sir. Q. But you did testify— A. I testified paying $500 to show the actual loss sustained by the owner by reason— Q. So that to make up your lien you included this $500 item? A. ■ To make up the lien^ yes, Q. And you did collect $5,500 from the bonding company? A. Yes, sir.”

There is no finding by either court that this $500 item constituted a part of the payment actually made by the indemnity company to the estate, and- we think the evidence altogether too meager to justify our conclusion to that effect. This part of the judgment must be reversed and the cause remanded for a new trial upon this issue.

While to accomplish this the entire judgment must be reversed,, there need be no further trial with reference to the liability of B. W. Sangor on the $500 note nor the liability of the. estate for the amount of the extras. Those issues stand adjudicated. The new trial should be confined to the question of the liability of the estate in the sum of $500 for money had and received.

By the Court. — Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.