Geiser Threshing Machine Co. v. Smith
Wisconsin Supreme Court
APPEAL from the Circuit Court for Winnebago County. Action upon a promissory note. Special verdict as follows : “ That on the 18th of March, 1878, defendants paid to plaintiff’s attorney the principal and interest on the promissory note described in tbe complaint, in full; that plaintiff’s attorney accepted the money, but claimed $17 costs, which defendants refused to pay, and plaintiff’s attorney kept the note and refused to surrender it until the costs were paid; and that…
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APPEAL from the Circuit Court for Winnebago County. Action upon a promissory note. Special verdict as follows : “ That on the 18th of March, 1878, defendants paid to plaintiff’s attorney the principal and interest on the promissory note described in tbe complaint, in full; that plaintiff’s attorney accepted the money, but claimed $17 costs, which defendants refused to pay, and plaintiff’s attorney kept the note and refused to surrender it until the costs were paid; and that on the 17th of March, 1878, tbe summons and complaint in this action were delivered to the sheriff of the county of…
1Opinion of the CourtRyan, C. J.
The code appears to sanction the pendency of an action in pais; a dangerous anomaly, tending to abuse. It is not necessary, however, to decide when this suit was commenced. Because, whether it was commenced or not, the acceptance by the plaintiffs of full payment of the amount due on the note extinguished their right to prosecute it. It may be that the plaintiffs might have refused the payment, and prosecuted the suit to judgment for damages and costs. But they could not receive the damages and reserve the right to prosecute the suit for costs. Canfield v. School District, 19 Conn., 529; Ayer…
2Cases cited1 opinion
- Canfield v. Eleventh School District in New-MilfordSupreme Court of Connecticut · 1849
3Cited by8 opinions
- Two Rivers Manufacturing Co. v. BeyerWisconsin Supreme Court · 1889
- Stolze v. Milwaukee & Lake Winnebago RailroadWisconsin Supreme Court · 1902
- Cernahan v. ChrislerWisconsin Supreme Court · 1900
- Collins v. LowryWisconsin Supreme Court · 1890
- Obert v. ZahnSupreme Court of Oklahoma · 1914
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