Opinion
January 7, 1959 —
February 3, 1959.
APPEAL from a judgment of the circuit court for Outagamie county: ANDREW W. PARNELL, Circuit Judge. Reversed.
For the appellant there was a brief by Hoeffel Coughlin, attorneys, and Byrne, Bubolz Spanagel of counsel, all of Appleton, and oral argument by Harry P. Hoeffel and Gordon A. Bubolz.
For the respondent the cause was submitted on the brief of Bradford Gabert of Appleton.
This is an action in equity for the foreclosure of a real-estate mortgage.
Erwin P. Hannemann and Hazel Hannemann, his wife, both forty-four years of age, borrowed $12,000 on January 5, 1949, from Herman T. Voecks, age seventy-seven, and Elizabeth Voecks, age eighty, his wife. As security the Hannemanns executed a note and mortgage, said note providing for payment of interest at the rate of four and one-half per cent per annum to be paid semiannually, the principal to become due and payable in fifteen years from date of mortgage. There was no provision in the note for the payment of any part of the principal except at the option of the Hannemanns, prior to its maturity.
Due to the death of Elizabeth Voecks on August 31, 1952, her husband, Herman T. Voecks, commenced proceedings to terminate the joint tenancy existing between him and his deceased wife. The Hannemann mortgage was listed showing a balance due on principal of $12,000. Herman T. Voecks paid inheritance tax on that basis.
On May 21, 1955, Herman T. Voecks died at the age of eighty-five. Edward E. Sager, appellant, was appointed executor of the estate of Herman T. Voecks on June 28, 1955. Per the will, all of the property of Herman T. Voecks was given to charitable institutions.
Erwin P. Hannemann died July 29, 1955. His sole survivor was Hazel Hannemann, the respondent in this action.
Account books of Herman T. Voecks contained record of the account of the Hannemanns and also 12 to 15 other debtors. The record in the account book with reference to the Hannemann mortgage showed that interest had been paid to January 5, 1955, and a balance due on the principal of $12,000. Income-tax returns of the Voecks indicated the receipt of $540 interest from the Hannemanns, each year up to May, 1955 (the time of Voecks' death).
The executor sent a statement to Hazel Hannemann showing a balance due the Voecks's estate in the amount of $12,000. Mrs. Hannemann notified the executor that on July 5, 1951, she and her husband had paid Herman T. Voecks the sum of $10,000 on principal, and that the balance due was $2,000, that interest payments of $45 semiannually had been paid to Voecks since 1951, and that she had signed receipts to so indicate. The receipt in question was a duplicate receipt, the original of which was never accounted for. In the action of foreclosure the complaint stated that there was due and owing $12,000 with interest at four and one-half per cent, principal to be paid fifteen years after January 5, 1949, interest to be payable semiannually, and the failure to pay interest due on July 5, 1955, January 5, 1956, July 5, 1956, and January 5, 1957, that was due and owing. Upon said note and mortgage there is due the sum of $12,000 principal plus interest computed to January 5, 1957, of $1,080, together with interest from the 5th day of January, 1957, at four and one-half per cent.
The answer sets up that the principal due and owing is $2,000, that $10,000 was paid on July 5, 1951, and that all of the interest on the principal balance of $2,000 has been paid to January 5, 1955. That offer of payment of the balance of $2,000 plus accrued interest since the date of the last interest payment had been made on various occasions and was refused by the plaintiff. That on January 15, 1957, the defendant tendered to the plaintiff the sum of $2,183 in United States currency, but that the plaintiff refused, and has since refused to accept the same. That the sum of $2,183 as was tendered had been deposited and paid to said Sydney M. Shannon, clerk of circuit court for Outagamie county, to be held for and to be paid to the plaintiff herein if he will accept the same, and that said payment into court was made in accordance with sec. 331.171, Stats.
The disputed question of whether or not a $10,000 payment on principal was made by Mr. and Mrs. Hannemann on July 5, 1951, was submitted to the jury by the court for an advisory verdict with the full acquiescence of the parties and their attorneys of record. The jury returned its verdict finding that the payment had been made.
The court in its decision on motions after verdict stated as follows:
"It is recognized that the verdict is advisory only to the court, and the court may adopt or reject it.
"The issues of fact in this case were highly controverted and strenuously contested.
"The court frankly states that its decision on the payment would have differed from the jury's finding . . . if that matter had been left to its decision. However, a jury submission seemed appropriate, and some moral significance must attach to it. It should not be advisory only to the extent that it accords with the court's view. Otherwise it would be accepted for its conformity rather than its advisory aspects.
"Ordinarily the court would not hesitate to reject the jury's finding if it considered it against the great preponderance of the credible evidence . . . . there may be some features of the evidence, or inferences from the evidence, which escape this court's observation and which might have properly influenced the jury to its result.
"The court is fearful that its view of the case may be persuaded by personal impressions not wholly related to the merits of the case, and considers it the better part of judicial discretion to accept the jury's verdict; and this it does with no little reluctance."
In accordance with the jury verdict, the trial court made and filed its findings of fact and conclusions of law, upon which judgment was entered in favor of the defendant.
It is fundamental in all equitable actions that the case must be tried by the court and that the jury's verdict is merely advisory. The court must find that all the facts necessary to entitle the plaintiff to a judgment have been established by the evidence.
In 30 C. J. S., Equity, p. 906, sec. 510, it is said:
". . . the decree which the court enters on the return of the verdict must be its own decree, based on its own knowledge of the facts, and it can treat the verdict of the jury only as an opinion on the facts which it is at liberty to consult."
We recognize that the court did find that the $10,000 payment had been made and that there is evidence to support the finding. We are not satisfied, however, that justice has been done in view of the following: (1) The court's statement that he would have made the opposite finding but for the advisory verdict; (2) the persuasiveness of the evidence tending to show that the payment had not been made; (3) the dissent of two members of the jury. Therefore, in the exercise of our discretionary power under sec. 251.09, Stats., we reverse and remand for a new trial.
By the Court. — Judgment reversed, cause remanded for a new trial.