Donahue v. Gunter , 151 Wis. 125 ( 1912 )

MARSHALL, J.

This appeal is ruled in favor of the appellant on elementary principles of estoppel in pais and by the decision upon the former appeal, 142 Wis. 465, 125 N. W. 950. The condition upon which respondent was authorized to use the deposit in discharge of the judgment, instead of returning it to appellant, was “neglect or refusal” of the latter to file the undertaking within the stipulated ■“sixty days.” It was respondent’s duty, as said upon the former occasion, before applying the money upon the judgment, to ascertain whether such contingency had happened. It was further said before:

“It cannot be held that he [appellant] refused to do so, although he may have been guilty of some negligence in not either insisting on its earlier return or moving the court for an extension of time in which to file.” Adding:

“When service was made three days before the time within which to file would expire, and the party on whom the service was made retained the document for his own convenience, and neglected or refused to return it, he should not be heard to say that the other party had ‘neglected’ or ‘refused’ to comply with the stipulation, until he had placed such party in a position where he could do so.”

The purport of the quoted language is, that, in the circumstances which are undisputed, appellant was entitled to opportunity to file the undertaking after coming into possession of it from O’Donnell’s attorney; that to have put appellant in default such attorney- should have returned the undertalc-ing in reasonable time for filing it. A neglect to return the paper, or offer to do so, whether appellant’s counsel demanded it or not, was neglect to return it within -the meaning of the former opinion. It was not essential for plaintiff in order to protect his rights to hunt out O’Donnell’s attorney and demand back the paper in time for filing within the sixty days. The latter, under the circumstances, should have been the actor, to the extent, at least, of offering to return the paper within the time.

The case was evidently submitted to the jury upon the theory that appellant was in default in not filing the papers within the sixty days, even if it happened because he did not go to the office of O’Donnell’s attorney, when such attorney was in, and make demand for the paper in time for filing. There is no satisfactory impeachment of appellant’s evidence that he called at such office during the ordinary business Lours, for tLe purpose of obtaining the paper, twice on the last day for filing and that the door was locked. That excused making demand, even if such were necessary, in order to prevent happening of the event upon which the deposit could be used as it was. So, in any view of the case, the court should have taken the case from the jury in appellant’s favor.

By the Court. — Judgment reversed, and cause remanded for judgment in accordance with the prayer of the complaint.