Page images
[ocr errors]

ward have been made and granted under the fore in the same position, and subject to the authority of the last-mentioned statute. It same charges, as the Fidelity & Casualty Comwill be observed, however, that chapter 105, pany, and was required by law to pay eachLaws 1880, authorizes this kind of business year, not only 2 per cent. on its gross premito be done only by "accident insurance com- ums received in this state, but also, on or panies,” which expression is, of course, to before March 1st of each year, a license fee have the same meaning as elsewhere in the of $300. The circuit court was right in reinsurance statutes; this act of 1880 being fusing a peremptory writ of mandamus to not an isolated piece of legislation, but part compel issue of license until these annual of a system of statutory regulation of insur- fees be paid, with interest, from the several ance business. We seem, therefore, to be dates when they were respectively due by driven into a dilemma which may be stated law. The judgment of the circuit court is as follows: If a company transacting only affirmed. the business of insuring plate glass against injury from causes other than fire or lightning is an accident insurance company, within the meaning of the insurance regulations, ZIMMERMAN v. BANYON et al. then section 1220 of the Revised Statutes has

(Supreme Court of Wisconsin. Dec. 16, 1898.). required that it pay each year a license fee

FRAUDULENT CONVEYANCE--CONSIDERATION of $300. If, however, such a company is not

WEIGHT OF EVIDENCE. an accident insurance company, it has no 1. Defendant agreed to give his share in a authority to conduct its business in this state.

farm to his sister for her services in keeping Being driven into this dilemma, we have

house for him and his brothers, but nothing

was done towards carrying out the agreement next to consider which horn of it to choose,- until eight years thereafter, when, after dewhether to decide that the expression "acci- fendant was sued, and without any demand dent insurance companies," in chapter 105,

from his sister, he executed a mortgage there

on to her, which she received with notice of Laws 1880, was used in a strictly limited

the action, for no other consideration than the sense, meaning only companies which are en- prior agreement. Held, that the mortgage was gaged in the business of insuring against

given with intent to hinder and delay creditors,

and was therefore void. accidents to the person of the assured, and

2. Courts are not bound to accept testimony is an authority only to that class of com

as true which is improbable or impeached by panies to do the additional business of in- attendant circumstances, because there is no surance against injuries to property from

direct testimony contradicting it.

3. Rev. St. 1878, 82320, avoids every concauses other than fire, or to hold that the

veyance made with intent to delay or defraud legislature in 1880 meant to legislate that all creditors, without regard to whether they are of said varieties of insurance should come existing or subsequent creditors. under the classification of accidental insur

4. Where a court found that a mortgage from

a brother to his sister was fraudulent as to ance, and might be written in this state by

creditors, a finding requested that he had any corporation authorized so to do by its agreed to convey the property to her in payment charter, whether also authorized to write in

for services is immaterial, since the mortgage, surance for personal accidents as well or not.

if. given, with the grantee's knowledge, to hin

der creditors, is none the less void because It would seem, in view of the development of given to secure a valid debt. the business apparent from the records in the

Appeal from circuit court, Dane county; R. office of the commissioner of insurance, and

G. Siebecker, Judge. from the showing of this relator, that the

Action by A. G. Zimmerman, as receiver, interests of the citizens of Wisconsin demanded plate-glass insurance, and we may

in supplementary proceedings, etc., against

Patrick H. Bannon and another, to set aside therefore infer that the legislature in 1880 meant to recognize and provide for this de

a mortgage as fraudulent as to creditors. mand. In order to accomplish that result

From a judgment in favor of plaintiff, de

fendants appeal. Affirmed. fully, the latter construction is necessary, namely, that a company authorized by its On April 21, 1898, one Blanche E. Palmer charter merely to write insurance against in- recovered a judgment of $5,500 in the circuit juries to property by causes other than fire court of Dane county against the defendant is authorized to do business in this state,

Patrick H. Bannon, in an action to recover and, as a result, that it is legislatively de- damages for seduction and breach of promclared to be an accident insurance company,

ise of marriage. An execution was duly iswithin the meaning of our statutes. The sued, and returned unsatisfied. Proceedings adoption of this construction of the statute supplementary to execution were commenced, does no violence to its language. Accident which resulted in the appointment of plaininsurance, colloquially, easily includes insur- tiff as receiver of Bannon's property. At ance against injuries to plate glass. Nor is that time Bannon was the owner of a oneit one of which the relator certainly can com- sixth interest of 160 acres of land, upon which plain, for ever since 1884 that company has the Palmer judgment was a lien. A few availed itself of the privilege of doing busi- days prior to the rendition of said judgment, ness in this state, and can have found its au- Bannon executed a mortgage thereon to his thority nowhere save in such a construction sister, the defendant Julia Bannon, purportof this statute of 1880. The relator is there- ing to secure the payment to her of the sum. of $700. The receiver brings this action to farm, and nothing was done towards carrying set aside said mortgage, claiming that it was out this agreement on the part of Patrick without consideration, and was executed for until the execution of the mortgage menthe purpose of hindering, delaying, and im- tioned. In the spring of 1897, suit was compeding the collection of any judgment that menced against Patrick, in which large dammight be secured in the pending suit. The ages were claimed. During the pendency of defendants answered separately, each deny. the suit, he stated to several persons that ing the fraudulent character of the mortgage, the plaintiff would never get any of his propand alleging that it was founded upon a good erty, and that he would put it out of the way. and valuable consideration. The case was After the case had been noticed for trial, he tried before the court, who found the facts executed and delivered the mortgage to Julia. substantially as stated, and, in addition, that It is admitted that at the time of the alleged one 10 of the land was Bannon's homestead; agreement, in 1890, nothing was said as to that the mortgage was not executed in com- how long Julia was to stay on the farm, and pliance with any previous understanding be- no value was placed on her services. It aptween the parties that it should be executed, pears affirmatively that the matter was never but was executed by Patrick on his own mo- talked of afterwards between them. There tion, and the fact of its execution was then is nothing to show that Patrick was under communicated to Julia; that Patrick exe- any greater obligation to pay Julia for her cuted the mortgage for the express purpose services than the other two children who of hindering, delaying, and defrauding the have lived there during a greater part of the said Blanche E. Palmer in the collection of time since 1890. The circumstances of the any judgment that she might recover; and giving of the mortgage were in the highest that the defendant Julia took the same with degree suspicious. The lawsuit was being knowledge of such purpose and intention, and pressed for trial. Patrick and Julia drove with the intention and for the purpose of from the farm to Deerfield together, the foraiding Patrick in such fraudulent intention. mer being on his way to Madison. While at Judgment was entered setting aside said Deerfield, he went to an attorney's office, had mortgage so far as it affected any of the the mortgage drawn up for $700, executed property described except the homestead. it, took the note to Julia and the mortgage Both defendants appeal.

to Madison, and had it recorded. This was

done without any talk or consultation with Olin & Butler and Bird, Rogers & Bird, for

Julia on the subject. There had been no deappellants. R. M. La Follette, G. E. Roe, and Rufus B. Smith, for respondent

mand on her part that the alleged agreement of 1890 should be carried out; no consulta

tion as to the amount or value of her wages; BARDEEN, J. (after stating the facts). no agreement that a mortgage should be We are urged to reverse this judgment be- given for her security in place of a deed. In cause the findings are not supported by the fact, it seems to have been a spontaneous evidence. No substantial end will be gained outburst of brotherly generosity. The de

a review of all the facts tending to sup- fendants claim that it was but the resurrecport the conclusion reached by the trial judge. tion of the ancient promise. It seems to A reference to some of the leading facts must have come at a time quite opportune to the suffice. Patrick inherited the property in interest of the Bannon family. question from his parents. There were six There are many other minor facts and circhildren. The father died some 36 years cumstances which have a bearing upon the ago. The property was held in common, and question at issue, but which need not be used for the support of the family. The stated. They tend largely to impeach the mother died in 1890. Patrick, Julia, and one transaction, and throw doubt and suspicion or two of the other children lived on the upon it. There can be no doubt but that farm, and continued to use it the same as Julia had full knowledge of the circumstances they had done before the mother died. Some surrounding Patrick. It is admitted that the time in the spring of 1890, Julia talked of la wsuit was somewhat discussed at home. going to Dakota. At this time it is claimed The situation must not be judged from the that there was an agreement made between mere statement of witnesses. Very few Patrick and Julia which may be best given cases can be found in the books where the in the language of the witness Patrick: fraudulent designs of parties have been de"Made my share of the farm over to my feated that could not have been decided the sister about a week after mother died. I did other way if the court had depended alone not and never have executed any writings to upon the statements of interested parties. my sister making the farm over to her; only Fraud seldom works in daylight. Its ways this mortgage I gave her. That agreement are hidden and secret. It is usually masked was made in the spring of 1890. She was to when it appears in the sunlight. It travels stop there, and keep house for John and me incognito. Its outward form is usually honand any of the rest of them that wanted to est and virtuous. It is always plausible, and come home, and I would give her my share many times deceptive. Because this is so, of the farmı; that is the agreement just as it is the duty of courts to use the judicial It was made.” The parties remained at the I searchlight with great care and prudence.


The identity of this legal bogy is frequently on duebills to be repaid out of the next monthrevealed by its environment. Facts and cir

ly installment on the contract price, and who,

on July 2d, advanced wages direct to the concumstances, small and inconsiderable in

tractor's workmen, on an estimate then due, themselves, often lead to unerring conclu- and which was in fact made on the 3d of July, sions. The story of the defendants sounds uid not thereby work a material alteration of plausible, but, when tested by the surround

the contract, which provided for payment of

monthly installments, and thus avoid the obliing circumstances, it becomes improbable. gation of the contractor's surety, so as to perAdmitted facts are sometimes just as po- mit him to acquire a material man's lien. tential to impeach a witness as positive tes

Appeal from circuit court, Dane county; R. timony. A court is not bound to accept a statement as true because there is no direct

G. Siebecker, Judge.

Action by David Stephens against Charles testimony contradicting it. It may be in

Elver. There was a judgment for defendant, herently improbable, or it may be impeached by the attendant circumstances. Courts are

and plaintiff appeals. Affirmed. never bound to accept the statement of a On March 6, 1897, one Joseph Pickering conwitness which is against all reasonable prob- tracted with defendant to furnish the necesability. Roth v. Manufacturing Co., 96 Wis. sary materials and do the required mason 615, 71 N. W. 1034; Groesbeck V. Railway work in the erection of a brick hotel building Co., 93 Wis. 505, 67 N. W. 1120. The trial

on the premises of the latter, in the city of court seems to have reached a conclusion Madison. Such work was to be done accordamply supported by the facts in the case, ing to the plans and specifications prepared by and we cannot disturb it. Section 2320, Rev. Conover & Porter, architects. The contract St. 1878, says that every conveyance or as- price for the materials and work was to be signment, in writing or otherwise, of any $5,349, and was to be paid in monthly install. estate or interest in lands, made with intent ments,-90 per cent. as the work progressed, to hinder, delay, or defraud creditors of their

on estimates of the superintendent, and the lawful actions, debts, or demands, shall be remainder when the work was completed. void. A conveyance made with intent to de- On the same date, Pickering delivered to delay a subsequent creditor comes within the fendant a bond, signed by the

as surestatute. Hoffman v. Junk, 51 Wis. 613, 8 N. ty, in the penal sum of $5,000, conditioned that W. 493.

he would carry out the contract, and pay all The defendant asked the court to find that bills for labor and materials incurred therein. Patrick made the agreement to convey to In consideration of plaintiff signing his bond, Julia as testified to by him, and that she per- Pickering agreed to purchase from him the formed services under such agreement, of the brick, rubblestone, caps, and sills necessary reasonable value of $700. These findings for the building, at prices then agreed upon. were refused, as being unsupported by the Pickering entered upon said work, and from proof and immaterial. Whatever may have time to time purchased building materials been the proper reason for his refusal, these from plaintiff to the amount of $1,202.39, on findings became immaterial in view of the which he paid $466.31 on July 15, 1897, and findings made. The defendant Julia having no more. The court finds that Pickering comparticipated in Patrick's fraudulent design, and pleted the contract, and that defendant paid having taken her mortgage with knowledge of him in full, as provided by the contract, 90 his purpose, and in furtherance of it, the fact per cent. as the work progressed, on monthly that Patrick may have justly owed her the estimates of the architects, and the remainder full sum of $700, and have given the mort- upon completion and acceptance of the work. gage as security therefor, did not purge the The court further finds that, during the progtransaction of its taint. It is not the hon- ress of the work, Pickering applied to the deesty of the debt secured by, but the purpose fendant for certain payments in advance of of, the conveyance, to which the statute has the estimates, with the knowledge and at the reference. The mortgage suit is none the suggestion of the plaintiff, whic) was refused, less void though given to secure an honest and that no payments or advances were in debt, if given and received with intention to fact made, except they were duly made upon hinder and delay creditors. David v. Birch- the estimates of the superintendent. During ard, 53 Wis. 492, 10 N. W. 557; Sweetser v. the progress of the work, however, certain Silber, 87 Wis. 102, 58 N. W. 239; Bleiler v. transactions occurred between Pickering and Moore, 94 Wis. 385, 69 V. W. 161. We see no

defendant, which plaintiff claims substantially reason for disturbing this judgment. The varied the terms of the building contract, and judgment of the circuit court is affirmed. operated to release him as surety on said

bond. The court made no findings in detail as to these transactions, but the evidence

shows that they were based upon the followSTEPHENS ». ELVER.

ing facts: Pickering commenced work under (Supreme Court of Wisconsin. Dec. 16, 1898.)

the contract in May, and the first estimate PRINCIPAL AXT) SURETY BULDING CONTRACTS

was made June 1st. Sometime in May, PickMATERIAL ALTERATIONS.

ering wanted $600 on the contract, but defendAn owner of a building under construction, ant refused to make any advance. Later he who loaned the contractor small sums of money wanted to go to Fond du Lac to see about some stone for the building, and he applied the principal would have to perform the conto defendant for the money to pay his ex- tract in due time.". "And it is no answer to penses. Defendant declined to pay him any- say that it is for the advantage of the surety, thing on the contract, but finally loaned him or that he has sustained no prejudice." $20, taking his duebill therefor, which was Brandt, Sur. $ 397. Mr. Justice Story, speakthereafter repaid defendant from the amount ing of the contract of suretyship, in Miller due on the June estimate. In June, defend- v. Stewart, 9 Wheat. 680, says: “Nothing ant loaned Pickering $200, to pay freight on can be clearer, both upon principle and ausome of the building material. On June 17th, thority, than the doctrine that the liability one of the men quit work, and Pickering ob- of a surety is not to be extended, by implicatained another loan of $10; and on June 21st, tion, beyond the terms of his contract. To under similar circumstances, a further loan the extent, and in the manner, and under the of $17.30, taking a note or duebill in each circumstances pointed out in his obligation, instance. The next estimate became due July he is bound, and no further. It is not suffi1st, but was in fact made July 3d. July 4th cient that he may sustain no injury by a was Sunday. Some of the men wanted their change in the contract, or that it may even money for the “Fourth''; so, on June 30th be for his benefit. He has a right to stand and July 2d, Pickering arranged for a further upon the very terms of his contract; and if loan, and defendant gave his personal checks he does not assent to any variation of it, and to the men, and took Pickering's note, which & variation is made, it is fatal.” This lanwas repaid to defendant out of the July esti- guage has been often quoted and many times mate, and which was considerably less than misunderstood. Some courts, in deference to the amount due Pickering thereon. The court his great learning and ability, and without finds that these transactions were personal studying the case he then had under considloans to Pickering, and were made without eration, have followed this statement of the reference to the contract, and upon his per- law to the very utmost limit of technicality. sonal security. Plaintiff gave notice to de- But the same court, in a later case, says: fendant that he had furnished materials to “There must be another contract substituted Pickering, on August 7th, and on the 17th for the original contract, or some alteration filed his lien. Prior to the receipt of such no- in a point so material as, in effect, to make a tice by defendant, he had fully settled and new contract, without the surety's consent to paid Pickering the amount due on his contract. produce that result.” Benjamin v. Hillard, 23 As conclusions of law, the court found that How. 149. In another case the court again there had been no violation of the contract, lays down the rule “that any agreement with and that plaintiff, as surety, had no right to the creditor which varies essentially the assert a lien against the defendant's building, terms of the contract without the assent of and gave judgment dismissing the complaint, the surety will discharge him from his reThe plaintiff appeals.

77 N.W.47

sponsibility.” Sprigg v. Bank, 14 Pet. 201.

Thus, it will be seen that the statement so H. W. Chynoweth, for appellant. R. M. La Follette and G. E. Roe, for respondent.

often quoted, "that, if there is any variation in the terms of the original contract, the

surety will be released," must mean that BARDEEN, J. (after stating the facts). | such variation must be material and subThe sole question for decision in this case is stantial, in the sense that the contract is not whether the transactions mentioned show the same contract for the performance of such a material alteration in the original which the surety bound himself. This is the contract as to release the surety. Unless principle recognized and enforced in Kimball this question should be answered in the af- Co. v. Baker, 62 Wis. 526, 22 N. W. 730, firmative, the plaintiff has no standing in where the agreement was that the advances court. The rule laid down by all the au- to be made to the principal were to be limthorities is that one who is a surety for the ited to $600, but were in fact over $1,700. contractor on his bond to pay for all mate- See, also, Manufacturing Co. v. Brown, 65 rials cannot claim a lien for materials fur- Wis. 99, 25 N. W. 427, and 26 N. W. 564. nished by him at the request of the contract- In Sage v. Strong, 40 Wis. 575, Mr. Justice

That would enable a man to exact pay- Lyon, in his opinion, says: “The rule is element for what he had promised should be mentary, and of most universal application, paid by another. Phil. Mech. Liens, 43a; that a surety for the performance of a conMcHenry v. Knickerbacker, 128 Ind. 77, 27 tract or obligation is discharged if such conN. E. 430; Spears v. Lawrence, 10 Wash. tract or obligation be materially changed 368, 38 Pac. 1019; Herrell v. Donovan, 7 without his consent.” The same language App. D. C. 322. Another rule, however, is is substantially repeated in Nichols v. Palmto the effect that “a surety for the comple- er, 48 Wis. 110, 4 N. W. 137. We have been tion of work to be performed by the princi- led to make these quotations from the aupal, where, by the terms of the contract, the thorities, because appellant has asserted the principal is to be paid by installments, is rule to be that, if the contract "is varied in discharged if the principal is paid faster the least particular, the surety is released.” than the contract provides. The surety is We understand the rule to be as above stat. thereby deprived of the inducement which ed, and which, we think, will be strengthened by the authorities hereinafter referred to. excess of the reserve under the contract. In Clagett v. Salmon, 5 Gill & J. 314, the su- This was considered a substantial violation preme court of Maryland says: “It is, then, of the contract, which released the sureties. upon the principle that the contract of the Lodge v. Wood, 14 Nev. 293. In the other surety is changed or varied to his prejudice, case there was a failure of the owner to and without his consent, that the surety is make weekly payments, as the contract re discharged. It is because the creditor has quired, which operated to discharge the suredisabled himself from fulfilling the duties ties. Association v. Miller, 16 Nev. 327. All and obligations which he owes to the surety of these cases, except the last one, are based that he is released from his responsibility.” upon the fact that the owner failed to keep In Preston v. Huntington, 67 Mich. 139, 34 the reserve provided for in the contract. N. W. 279, the defendant Platt became sure- The effect of this stipulation in the contract, ty for the payment of rents by the other de as suggested in Calvert v. Dock Co., was to fendants. Afterwards the lessor, without urge the contractor to perform the work, consent of the surety, agreed with the les- and to leave in the hands of the owner a sees to reduce the rent $25 per month. fund wherewith to complete it, if he did not, Touching this point, the opinion contains the and thus materially tended to protect the following: "The reduction of the rent under sureties. In Board v. Branham, 57 Fed. the new agreement could not affect George 179, the contract provided that when, in the W. Platt, Jr. It did not release him from opinion of the owner, the building was half his obligation any more than it the amount completed, an estimate should be made, and of such reduction had been indorsed as a the owners should then pay a sum equal to payment upon the lease. No new terms or 85 per cent of the work done, provided the obligations were imposed by the new agree- amount paid should not exceed $7,800, and ment. The lessors simply waived their right the remainder of the contract price when the to $75 a month, as provided in the lease, work was fully completed. When the work and agreed to take $50 per month instead. was about one-third done, the plaintiff, withGeorge W. Platt could not complain of this." out an estimate having been made, paid the The quotation from Brandton Suretyship contractor over $10,000 on the contract. The heretofore made, to the effect that, if the court said: "Such a gross departure from the principal is paid faster than the contract terms of the contract, to the prejudice of the provides, the surety is discharged, is some- surety, operates to release them from the what misleading when compared with the bond in suit." In each of the following authorities cited to support it. The princi. cases cited to support the appellant's contenpal case cited, and which has been referred tion, the building contract contained a stiputo very many times by the courts in this lation reserving a portion of the contract country, is Calvert v. Dock Co., 2 Keen, 638. price until the building was completed, which The syllabus of this case is as follows: "A was violated by the owner paying the concontractor undertook to perform certain work, tractor a sum largely in excess of the reand it was agreed that three-fourths of the


College v. Meagher (Ky.) 11 S. W. work, as finished, should be paid for every two 608; Ryan v. Morton, 65 Tex. 258; Taylor months, and the remaining one-fourth upon v. Jeter, 23 Mo. 244; Bell v. Paul, 35 Neb. the completion of the whole work. Held, 240, 52 N. W. 1110. that the sureties for the due performance of An extreme case, and one confidently rethe contract were released from their liabil- lied on, is Simonson v. Grant, 36 Minn. 439, ity by reason of payments, exceeding three- 31 N. W. 861. Plaintiffs furnished building fourths of the work done, having, without material to the contractors, and were surethe consent of the sureties, been made to the ties for the faithful performance of the concontractor before the completion of the whole tract. After the work was commenced, and work." Another case cited by the learned the first installment paid, the owner so far author is Bragg V. Shain, 49 Cal. 131. In departed from the terms of the contract that that case the owner was to pay 75 per cent. payments were made by him to divers perof the contract price each month as the work sons on the order of the contractors, without progressed, and the remainder when the reference to the state of the work or the work was completed. During the progress terms of the contract, and in some instances of the work, the owner of the building paid to an amount exceeding the installments due, the contractor over $5,000 more than the 75 as stipulated therein, and in anticipation per cent. due on the contract. The court thereof. The language of the decision is as said: "We are of opinion that the failure of follows: "In anticipating the installments the Congregational Society to retain in their and otherwise disregarding the conditions of hands 25 per cent. of the contract price, as the contract, they were practically so modistipulated in the contract with Shain, oper- fied that it was not the contract to the perated to release the defendant Bonnet as the formance of which plaintiffs had bound themsurety of the latter." Two cases are also selves as sureties. In such cases the surecited from Nevada by Brandt, as sustaining ty may be deprived of the inducement which the full doctrine of the text. In one the the principals would have to perform the conowner failed to make weekly payments as tract in due time as the contract requires.” agreed, and later paid a considerable sum in Thus, it will be seen that there must be a


« PreviousContinue »