Opinion
February 5, 1962 —
March 6, 1962.
APPEAL from a judgment of the circuit court for Wood county: HERBERT A. BUNDE, Circuit Judge. Affirmed.
For the appellant there was a brief by E. D. Helke of Nekoosa, and W. L. Jackman of Madison, and oral argument by Arnold J. Wightman of Madison.
For the respondent there was a brief by Schmidt Thibodeau of Wisconsin Rapids, and oral argument by Leon S. Schmidt.
This is an action by Elizabeth Radke, special administratrix of the estate of her deceased husband, Walter A. Radke, against Lucille Konash Yaeger and against Roger and Dorothy Gigstead, for money had and received. The jury found that the defendants Roger and Dorothy Gigstead were not indebted to the plaintiff, but that Lucille Konash Yaeger was indebted to the plaintiff in the amount of $21,000, plus interest of $6,178.88, for a total of $27,178.88. Mrs. Yaeger has appealed from the judgment which was entered on the verdict.
In 1933 Walter A. Radke was cashier of the Nekoosa-Port Edwards State Bank. Mrs. Yaeger was employed as a secretary for the bank. During that year Radke and Mrs. Yaeger organized an insurance agency called "W. A. Radke Insurance Agency." The record does not clearly reflect the ownership status of the agency, but at the outset Radke was either the sole owner or a part owner thereof. Mrs. Yaeger was either a part owner or an employee. The agency business was conducted by them in addition to their duties with the bank, and from offices in the bank building. Finances were handled through a checking account with the bank known as the "W. A. Radke Special Account." Insurance premiums were deposited in this account, and expenses were paid from it. Both Radke and Mrs. Yaeger had authority to draw on the special account.
In 1944 Radke became president of the bank and Mrs. Yaeger became cashier. On January 1, 1949, Radke became treasurer of the Nekoosa-Edwards Paper Company. He remained as treasurer of the paper company and president of the bank until his death in September, 1953.
The Nekoosa-Edwards Paper Company purchased insurance through the W. A. Radke Agency. Mrs. Yaeger contends that Radke was concerned with the propriety of his being an officer of the paper company and at the same time participating in the profits of the insurance agency. This was the reason, she argues, for the execution of the following documents:
1. A bill of sale dated March 21, 1949, signed by Radke, which purported to sell to Mrs. Yaeger for $1,000 "the insurance agency and right of renewal of all expirations, together with agency accounts collected or receivable which may be standing in the name of `W. A. Radke Agency.'"
2. A letter dated March 21, 1949, signed by Radke, which recited the above sales agreement and further stated that "when such amount [$1,000] is paid to me or my heirs, the agency and all accounts receivable shall be the property of Lucille Konash. . . ."
3. A personal check of Mrs. Yaeger for $1,000 dated March 21, 1949, and made payable to Radke.
In 1950 the Gigsteads were desirous of completing construction of a grocery store located in Nekoosa. They arranged to finance the construction with Radke and Mrs. Yaeger. The Gigsteads received a total of $26,000 in three separate checks.
About the time these payments were made to the Gigsteads, they executed a note and real-estate mortgage for $26,000. Roger Gigstead testified that these documents were executed in favor of Radke. The appellant testified that the only writings on these documents were the signatures of the Gigsteads, i.e., they were executed in blank. These documents apparently were not available at the trial. Mrs. Yaeger admitted that she never obtained a formal written assignment of the note and mortgage from Radke. Monthly payments of interest, taxes, and insurance were to be made by the Gigsteads to the Nekoosa bank. The principal of the note was payable in ten years.
Walter Radke died on September 8, 1953. Neither Radke nor his estate ever received a principal payment on the 1950 Gigstead note and mortgage. After Radke's death, and until 1956, the Gigsteads continued to make their monthly payments to the Nekoosa bank.
On April 18, 1956, the Gigsteads executed a new note and real-estate mortgage for $26,000 in favor of Mrs. Yaeger. Roger Gigstead testified that Mrs. Yaeger told him that this new note and mortgage would satisfy and discharge his 1950 debt to Radke. After the new note and mortgage were executed, the Gigsteads made their monthly payments directly to Mrs. Yaeger. The Gigsteads paid the $26,000 principal of the 1956 note to Mrs. Yaeger on May 12, 1959. A satisfaction of the 1956 mortgage was recorded.
Between April 1, 1949, and September 30, 1953, Mrs. Yaeger wrote numerous checks drawn on the W. A. Radke Special Account payable either to Radke himself or to other persons on his behalf. Many of these checks were in payment of Radke's personal expenses. The checks totaled over $42,000. Further facts will be stated in the opinion.
The plaintiff alleges that Mr. Radke had loaned $26,000 to the Gigsteads in 1950 and that such sum had not been repaid either to Radke or to his estate. It is further averred that the Gigsteads repaid the loan in 1959 to Mrs. Yaeger, who allegedly was not entitled to receive such payment. On the other hand, Mrs. Yaeger contends that she furnished $5,000 of the loan which was made to the Gigsteads and, in addition, had expended over $42,000 of her own funds for the benefit of Mr. Radke, which sum, she claims, should be allowed as a setoff against the plaintiff's claim.
Implicit in the jury's finding that Mrs. Yaeger was indebted to the plaintiff in the sum of $21,000 plus interest is the finding that Mrs. Yaeger received the entire $26,000 repayment of the loan but was entitled to only $5,000 thereof. The jury's finding also reflects its conclusions that the defendant was not entitled to set off against the plaintiff's claim any part of the $42,000 which was applied for Radke's benefit from the agency's account between 1949 and 1953.
There are two principal arguments advanced by Mrs. Yaeger which require discussion:
(1) Mrs. Yaeger contends that the jury was inconsistent in allowing her a credit for $5,000 which stemmed from the insurance-agency account in connection with the Gigstead mortgage yet impliedly holding that she was not the owner of such account.
(2) She also urges that the verdict was not in the form a special verdict as she had requested but instead was a general verdict.
We are of the opinion that there was nothing inconsistent in the determination that Mrs. Yaeger did not own the insurance-agency account but nevertheless was entitled to a $5,000 credit on the Gigstead mortgage. Mrs. Yaeger undoubtedly had some type of interest in the Radke Agency. There were three separate checks which constituted the mortgage money originally given to the Gigsteads. The testimony fails to enlighten us as to why one of the checks in the sum of $5,000 was drawn on the agency account and signed by Mrs. Yaeger while the other two checks (one for $11,000, another for $10,000) were signed by Radke. The jury was free to evaluate this testimony, and there is credible evidence to support a conclusion that Mrs. Yaeger had lent $5,000 of her own funds to the Gigsteads. The $5,000 could have represented her share of commissions earned; Mrs. Yaeger testified that she had a partnership interest in the agency and that part of the profits were left in the business. The jury may have regarded the $5,000 as her share the undivided profits. In any event, it does not follow from the allowance of the $5,000 that the jury was obliged to treat the agency account as having been owned by Mrs. Yaeger.
In fact there are many convincing reasons for concluding that the agency account was not owned by her. In her income-tax returns after the purported assignment she treated herself not as the owner but as an employee of the agency. As late as three years after the "assignment," Mrs. Yaeger's bonus check was signed by Mr. Radke. The fact that after the alleged transfer of ownership some $42,000 was expended from the agency account for Mr. Radke's personal matters strongly suggests that he remained the owner of the account. Finally, Mr. Radke's failure to cash the check for $1,000 received by him from Mrs. Yaeger as consideration for the assignment further demonstrates that the proposed sale was either a mere facade or was never consummated.
The pertinent questions on the special verdict of which Mrs. Yaeger complains read as follows:
"Question 3. Is the defendant, Lucille Konash Yaeger, presently indebted to the plaintiff, Elizabeth Radke, special administratrix of the estate of Walter A. Radke, deceased, as a result of the financial transactions revealed by the evidence produced at the trial?
"Answer: Yes.
"Question 4. If you answer question No. 3 `Yes,' then answer this question: At what sum do you find such indebtedness?
"Answer: $21,000 and simple interest at four percent in amount of $6,178.88, $27,178.88."
The trial judge conceded that these were "pretty close" to being questions of a general verdict. It is noted, however, that the objections which Mrs. Yaeger's counsel made to the form of the special verdict were not clear-cut objections but were equivocal and depended upon what the instructions might contain. The language of proposed questions was suggested only in narrative form by Mrs. Yaeger's counsel. It is counsel's responsibility to submit with clarity those questions which he wants incorporated in the special verdict. Fondow v. Milwaukee E. R. T. Co. (1953), 263 Wis. 180, 56 N.W.2d 841.
In our opinion there was no prejudicial error in the form of this special verdict. The court's instructions adequately covered the subject of setoff as claimed by Mrs. Yaeger, and the jury's verdict must be deemed to represent the jury's conclusions thereon. We consider that this matter was fully tried and that a just result was reached.
By the Court. — Judgment affirmed.