Schultz v. Kosbab

Wisconsin Supreme Court

Schultz v. Kosbab

103 N.W. 237, 125 Wis. 157, 1905 Wisc. LEXIS 135

CourtWisconsin Supreme Court

DecidedMay 2, 1905

StatusPublished

Cited by2 cases

This text of 103 N.W. 237 (Schultz v. Kosbab) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schultz v. Kosbab, 103 N.W. 237, 125 Wis. 157, 1905 Wisc. LEXIS 135 (Wis. 1905).

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Opinion

Cassoday, C. J.

The complaint alleges two causes of action — one for money had and received June 28, 1902, and the other upon a note given by the defendant twenty months afterwards in settlement of the same claim. The answer takes issue with the first cause of action, and claims that the second cause of action should be abated because it is based upon the same cause of action as the first. The two counts, are consistent with each other, and under the statutes and the repeated decisions of this court they were properly united in the same complaint. Secs. 2646, 2647, Stats. 1898; Curtis v. Moore, 15 Wis. 134; Muzzy v. Ledlie, 23 Wis. 445; Whitney v. C. & N. W. R. Co. 27 Wis. 327; La Pointe v. O’Malley, 46 Wis. 35, 50 N. W. 521; Bishop v. C. & N. W. R. Co. 67 Wis. 610, 31 N. W. 219; Shenners v. West Side St. R. Co. 74 Wis. 447, 43 N. W. 103. Certainly the defendant was in no way prejudiced by the presence of the second count, since it alleges a claim for a considerably less amount than the first count. The only substantial controversy under the second count is as to whether the note was in fact delivered. The findings of fact, as set forth in the foregoing statement,, are to the effect that the defendant signed' the note in settlement of the plaintiff’s claim, and thereupon caused it to be delivered to the plaintiff’s attorney in the matter. Such findings of fact, in our judgment, show that there was a complete delivery of the note in settlement of the plaintiff’s claim, the conclusion of law of the trial court to the contrary notwithstanding.' Such settlement covered what the court found to be the defendant’s counterclaim for damages for the alleged breach of that “part of the oral agreement for the purchase of the farm” whereby the plaintiff agreed to look to and take care of the hay. Besides, under the facts as found by the court, it is well settled that the whole agreement was-[161]*161Void. Sec. 2304, Stats. 1898; Clark v. Davidson, 53 Wis. 317, 10 N. W. 384; Kessler’s Estate, 87 Wis. 660, 59 N. W. 129; Harney v. Burhans, 91 Wis. 348, 64 N. W. 231; Martin v. Martin's Estate, 108 Wis. 284, 84 N. W. 439. Being wholly'void, tbe defendant could not recover damages for a breach of a paid; of such agreement. Id. Had the plaintiff taken and used the hay, a different question would have been presented.

By the Court.- — The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff and against the defendant for $52 and interest thereon from March 5, 1904,

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Cassoday, C. J.

The complaint alleges two causes of action — one for money had and received June 28, 1902, and the other upon a note given by the defendant twenty months afterwards in settlement of the same claim. The answer takes issue with the first cause of action, and claims that the second cause of action should be abated because it is based upon the same cause of action as the first. The two counts, are consistent with each other, and under the statutes and the repeated decisions of this court they were properly united in the same complaint. Secs. 2646, 2647, Stats. 1898; Curtis v. Moore, 15 Wis. 134; Muzzy v. Ledlie, 23 Wis. 445; Whitney v. C. & N. W. R. Co. 27 Wis. 327; La Pointe v. O’Malley, 46 Wis. 35, 50 N. W. 521; Bishop v. C. & N. W. R. Co. 67 Wis. 610, 31 N. W. 219; Shenners v. West Side St. R. Co. 74 Wis. 447, 43 N. W. 103. Certainly the defendant was in no way prejudiced by the presence of the second count, since it alleges a claim for a considerably less amount than the first count. The only substantial controversy under the second count is as to whether the note was in fact delivered. The findings of fact, as set forth in the foregoing statement,, are to the effect that the defendant signed' the note in settlement of the plaintiff’s claim, and thereupon caused it to be delivered to the plaintiff’s attorney in the matter. Such findings of fact, in our judgment, show that there was a complete delivery of the note in settlement of the plaintiff’s claim, the conclusion of law of the trial court to the contrary notwithstanding.' Such settlement covered what the court found to be the defendant’s counterclaim for damages for the alleged breach of that “part of the oral agreement for the purchase of the farm” whereby the plaintiff agreed to look to and take care of the hay. Besides, under the facts as found by the court, it is well settled that the whole agreement was-[161]*161Void. Sec. 2304, Stats. 1898; Clark v. Davidson, 53 Wis. 317, 10 N. W. 384; Kessler’s Estate, 87 Wis. 660, 59 N. W. 129; Harney v. Burhans, 91 Wis. 348, 64 N. W. 231; Martin v. Martin's Estate, 108 Wis. 284, 84 N. W. 439. Being wholly'void, tbe defendant could not recover damages for a breach of a paid; of such agreement. Id. Had the plaintiff taken and used the hay, a different question would have been presented.

By the Court.- — The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff and against the defendant for $52 and interest thereon from March 5, 1904,

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Bluebook (online)

103 N.W. 237, 125 Wis. 157, 1905 Wisc. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schultz-v-kosbab-wis-1905.

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