Goode v. Barr , 64 Wis. 659 ( 1885 )

Taylor, J.

We think the findings of fact are sustained by the evidence given on the trial, and the only important question in the case is whether such findings sustain the conclusion of law, viz., that the appellant was indebted to Mary J. Wilkinson at the time of the service of the' garT nishee summons in any amount whatever.

After a careful consideration of the findings of fact, we do not think there is any ground for saying that upon such facts there is shown to be any indebtedness on the part of Barr to Mrs. Wilkinson. All that is found is that the appellant, Bwr, authorized Roselip to pay Mrs. Wilkinson a sum not exceeding $1,000 in order to settle her claim to the land and to obtain from her the peaceable surrender of the possession of the lands sold by him to Roselip; that Rose-lip did pay her $300, and Barr sanctioned such payment by Roselip, and credited him for that sum on the contract for the sale of the land.

The test as to whether the garnishee should be held liable to the respondent is whether the facts found, if found in an action between Mrs. Wilkinson and Bwr, would have entitled her to a judgment against him. To us it seems perfectly apparent that in an action by. Mrs. Wilkinson, a complaint stating only the facts found by the court in this case must have been held bad as not stating facts sufficient to constitute a cause of action. To have entitled her to recover, she would have been compelled to allege, under the authority conferred upon Roselip by Bwr, that Roselip had offered to pay her the sum of $1,000, or some other less sum, for her claim upon said land, and in consideration that she would surrender peaceable possession thereof to said Roselip; that she had accepted such offer, and was ready and willing to perform the agreement on her part, offering to release her claim and surrender the possession. Certainly nothing short of this would have made out a cause of action on her part against Barr, and it is probable that, before commencing an action, she would have been compelled to tender a release, and surrender the actual possession to Rose-lip. Roselip was also a garnishee in this case, and the court discharged him because there was no evidence that he had agreed with Mrs. Wilkinson to pay her any sum of money beyond the $300 he did in fact pay her, and at the same time held the appellant liable on the ground that in some way, through the agency of Eoselip, he had bound himself to pay Mrs. Wilkinson the $1,000. There is not a particle of evidence in the case tending to show that Eoselip ever informed Mrs. Wilkinson of the direction Barr had given him in regard to the payment of the $1,000, or that he agreed to pay her any sum other than the $300 paid, or that she ever agreed to release her claim to the land and surrender peaceable possession on being paid such sum, or any other sum. And the fact appeared on the trial that she was still in possession of the house on the land.

The learned counsel for the respondent urges that upon the evidence it is clear that Mrs. Wilkinson could have recovered against Barr on the ground that his statement to Eoselip was an admission of indebtedness to her of the sum of $1,000. We do not so understand the evidence, and it is evident the learned circuit judge did not so understand it when he made his findings. The utmost that can be said in favor of Mrs. Wilkinson is that Eoselip was authorized by Barr to offer her $1,000 for a release of all claim to the land and the surrender of the possession; and it is idle to say that she can recover upon this authorized offer without alleging and showing that such authorized offer was in fact made to her by Eoselip, that she accepted the offer, and was ready and willing to perform on her part.

We think the court erred in holding that there was anything due from the appellant to Mrs. Wilkinson when the garnishee summons was served.

By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to the circuit court to enter judgment for the appellant.