Wing v. Stackhouse

127 N.W. 955, 143 Wis. 343, 1910 Wisc. LEXIS 289

• Court: Wisconsin Supreme Court
• Decided: October 4, 1910
• Status: Published

Opinion

WiNslow, O. J.

The evidence shows without dispute that the deputy sheriff never in fact sold the property in question. He attached it, removed it to the butcher shop, and when the attachment claims were settled turned it over with all the •other attached property to Mr. Kurth, Sr., who claimed to be acting for his son in making the settlement. Had George Kurth himself settled up with his attachment creditors and thereupon received back from the deputy sheriff the hides in ■question the case would be in principle indistinguishable from the case of Enos v. Cole, 53 Wis. 235, 10 N. W. 377. An action of trespass for the recovery of nominal damages would have been the only remedy of the plaintiffs against the deputy sheriff, for the reason that the temporary possession held by him would constitute no injury. Had it been shown that Mr. Kurth, Sr., was the duly authorized agent of his son to make the settlement and close out the business the same result would doubtless follow. But the proof seems to have been defective on this point and only showed that Mr. Kurth, Sr., clainjed to be his son’s agent.

Now, it may be barely possible that had the deputy sheriff not levied on the hides in question Mr. Kurth, Sr., would not have turned them over to Eronk, though this is the merest possibility, and verdicts are not to be based on mere possibilities. Conceding that there is such a possibility, still we think the evidence demonstrates to a moral certainty that the mere temporary interference of the sheriff had no effect on the course of events, and that Kurth, Sr., would have followed exactly the same course in settling up the attachment, suits and turning over the property to Eronk had the interference of the deputy sheriff never taken place.

We also think that under the circumstances shown in this-, case the plaintiffs are in no position now to attack the elder-Kurth’s authority to act for his son. They either knew or-were charged with knowledge of all the material facts with regard to the settlement of the attachment suits, and they have not disavowed the settlement, but, on the other hand, stand here with the fruits of the settlement in their possession. Long before this action was commenced they knew that George Kurth never delivered the hides which they bought but retained them in his own possession; they knew that he absconded while presumably still in possession of them; they knew that the elder Kurth assumed to settle the suits for his son, and they must have known that the way in which he did it was by taking the property which his son left, and transferring it to Eronk. It seems to us that they have very clearly approved of the transaction and cannot now be heard to say that the act of the deputy sheriff in surrendering” the attached property to the elder Kurth was wrongful. It may be that they have an action against the elder Kurth for conversion of their property, but that question of course is not. here.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment for the defendant notwithstanding the verdict.