T. D. Kellogg Lumber & Manufacturing Co. v. Webster Manufacturing Co.

KeRWIK, J.

The vital question for determination upon this appeal is whether the tax certificate taken in the name of Weeks was a valid lien upon the real estate conveyed to plaintiff. If so, then the plaintiff had a good cause of action against the defendant. This question turns upon whether the proof establishes that the certificate' was taken by Weeks for the defendant and therefore amounted to a payment of the taxes, and whether the relation of Weeks to the defendant in the matter was such as to prevent him from taking the certificate and thereby making it a lien upon the premises. These questions involve an examination of the evidence as to whether or not it sustains the findings. Much labor has been imposed upon the court on account of the indefinite and unsatisfactory condition of the evidence. We have bestowed much labor upon the record with a view of discovering, if possible, sufficient competent evidence to support the findings in view of the well-settled doctrine of this court that, unless the clear preponderance of the evidence is against the findings, they cannot be disturbed. We have in the first place the prima facie case made in favor of Weeks’s title by the certificate, regular upon its face, in addition to the positive evidence of Weeks that he was the absolute owner of the certificate, corroborated by Gertrude Weeks, bookkeeper. To meet this evidence the defendant attempted to make a ease by statements in'books of defendant kept by Weeks and his wife while in the employ of defendant, and letters and declarations written and made by agents of defendant. The defendant put in evidence, under objection, certain entries on the cash book and ledger of the defendant company, which it was claimed tended to show payment by the defendant of an amount on a tax certificate corresponding to the amount of the tax certificate in question; also a letter in the handwriting of Gertrude Weeks, and found in the files of defendant’s office, referring to the fact that the land had been sold for taxes and that Weeks had bought in the certificate in his *346 own, name in order to save interest, and stating the amount paid for the certificate, which corresponds in amount with the certificate in question, and that the defendant had made draft for $200 to make up the amount of the certificate, $245.13. The draft also was found in the files of defendant’s office, and' is in evidence under objection. But the difficulty with this evidence is that it was incompetent. The entries in the books were not competent because no sufficient foundation was laid for their admission under the provisions of secs. 4186, 4187, Stats. (1898), and they were not, even if regularly in evidence, proof of payment of the item $245.13, being an item exceeding $5. Sec. 4187, Stats. (1898); Winner v. Bauman, 28 Wis. 563 ; Brown v. Warner, 116 Wis. 358 , 93 N. W. 17 . The letters and entries could only be admissible, if at all, as-deelaxations of the agents of defendant, and upon this ground defendant’s counsel claims they were competent, particularly the letter written by Gertrude Weeks, heretofore referred to,, respecting the payment of the $245.13 on the tax certificate. No attempt'was made to prove the facts, but the letter and other declarations of the agents of defendant were offered as evidence of payment. Such evidence was merely self-serving-declarations and incompetent. Anderson v. Fetzer, 75 Wis. 562 , 44 N. W. 838 ; Befay v. Wheeler, 84 Wis. 135 , 53 N. W. 1121 ; Chase v. Woodruff, 133 Wis. 555 , 113 N. W. 973 ; Fay v. Rankin, 47 Wis. 400 , 2 N. W. 562 ; Jilsun v. Stebbins, 41 Wis. 235 . It was not shown that the letter was written or sent by Gertrude Weeks; only that it was found in the files- and was in her handwriting. The unsworn statements of an agent are not evidence in favor of the principal. 16 Cyc.. 1205, 1206.

It is argued, however, by respondent that the declarations-were not the declarations of agents of defendant, but admissions of W. C. Weeks made through his wife- and agent; but both Weeks and his wife were agents of defendant in the transactions offered as evidence. It is further argued that the- *347 admissions of Weeks were admissible against plaintiff because plaintiff is claiming under Weeks, under the doctrine that the admissions of an assignor made prior to the assignment are admissible against the assignee; citing McCurdy v. Rogers, 21 Wis. 199 , and Snyder v. Jennings, 15 Neb. 372 , 19 N. W. 501 . But the rule has no application here. The plaintiff is not claiming as assignee of Weeks. Its cause of action is based upon breach of warranty by defendant. An examination of the authorities cited by respondent will show that they do not support his contention. Snyder v. Jennings, supra, is to the point that where a grantee of land, without the knowledge or consent of his grantor, surrenders possession to an adverse claimant, he cannot thereafter maintain an action upon the covenant of warranty without alleging and proving that the title which he surrenders is paramount to the title received from his grantor. McCurdy v. Rogers, supra, involves the question of personal liability of an agent, and the plaintiff sued as assignee of one Lent, and it was held that the admissions of Lent made before the assignment of his claim were admissible. This is the general doctrine. 1 Greenl. Ev. (15th ed.) § 190; Hayward R. Co. v. Dunklee, 30 Vt. 29 ; Roebke v. Andrews, 26 Wis. 311 ; Krecheberg v. Leslie, 111 Wis. 462 , 87 N. W. 450 ; Vagts v. Utman, 125 Wis. 265 , 104 N. W. 88 ; Lamorexex v. Huntley, 68 Wis. 24 , 31 N. W. 331 ; Griswold v. Nichols, 126 Wis. 401 , 105 N. W. 815 .

Counsel for respondent frankly admits that the books were not qualified under the statute so as to be admissible in evidence, but he says they were admissible as admissions of Weeks made by his agent, Gertrude Weeks. The admissions of Weeks and Gertrude were the admissions of the agents of defendant, as we have seen; therefore were not admissible in favor of the principal. It is also insisted that there was fraud and collusion between plaintiff and Weeks established; therefore declarations of Weeks were admissible in favor of de *348 fendant. The court below made no findings upon tbis question, and we are not able to say upon tbe evidence that fraud was established.

Counsel for respondent further insists that there are no sufficient exceptions to the ninth finding, to the effect that defendant kept a bank account at Antigo and that Weeks drew checks against it and made drafts, on the ground that at least three distinct propositions are embraced in this finding and that the exception to it is too general'. It is at least very doubtful whether this objection may not be good as to this finding under the doctrine laid down in Ingersoll v. Seatoft, 111 Wis. 461 , 87 N. W. 460 , and other cases in this court. But even if this be so, it does not help the respondent out of the difficulty, because other findings necessary to make the defendant’s ease are sufficiently excepted to and are unsupported by competent evidence.

Nor do we think the proposition of respondent’s counsel that Weeks could not, because of his position with the defendant, take the tax certificate in his own name is supported by the evidence. It is true, if Weeks were charged with the duty of paying the taxes and was furnished with money by defendant for that purpose he could not acquire a valid tax certificate as against defendant. McMahon v. McGraw, 26 Wis. 614 ; Fox v. Zimmermann, 77 Wis. 414 , 46 N. W. 533 ; Geisinger v. Beyl, 80 Wis. 443 , 50 N. W. 501 . But in the instant case Weeks was not charged with the duty of payment of taxes. From the evidence this duty appears to have rested with A. J. Webster, president of the defendant, and the bookkeeper.

Some other grounds in addition to those considered are argued by counsel for appellant, upon which it is insisted that plaintiff was entitled to recover; but, since we have concluded to reverse the judgment upon other grounds, we shall not treat them in this opinion.

Without the incompetent evidence erroneously admitted *349 there is practically no evidence to support the findings upon which the judgment rests. It follows, therefore, that the judgment must he reversed.

By the Court. — The judgment is reversed, and the cause remanded with instructions to the court below to enter judgment for plaintiff, unless the court below shall in its discretion, upon proper showing, order a new trial