The appellant asks for a rehearing. His petition, following its language, "states as grounds therefor:
(1) that the court in the majority opinion misconstrued the record.
(2) and the court has failed to consider questions decisive of the case, and
(3) has ignored the fact that appellant on the basis of a solemn stipulation made by the respondent on the trial has refrained from taking evidence which would successfully overthrow all the inferences drawn by the court from the silence of the record, and that it is highly unjust to permit a party to be entrapped by a stipulation as to facts so that he refrained from offering evidence on the point and then throw suspicion upon his case because such evidence was not produced."
The above statement of grounds is supplemented by thirty typewritten pages devoted to argument and, in part, to assertions of fact not pertinent because not of record.
The first of the above grounds, we conclude from the argument annexed to the petition, relates to our construction of the appellant's demand for a retrial. As stated in the majority opinion, the statute provides for but two kinds of specifications, one for retrial of the entire case, and the other for a retrial of particular facts. *Page 795
It is apparent, we think, upon the bare inspection of his demand for a retrial, that the appellant has not pointed out any particular facts for review; and that it is only by rejecting as surplusage the additional language in the specification that it can be sustained at all. On this point the court was unanimous in its conclusion, and that conclusion remains unshaken by the petition.
The second ground, viz.: that the court has failed to consider questions decisive of the case, refers to certain language contained in the stipulation, which the petitioner contends clearly establishes his construction of the stipulation, to-wit: that it was, in effect, an acknowledgment by the plaintiff, in open court, that he owed the $500 note, with interest thereon from December 1, 1892. The particular portions of the stipulations to which our attention is called will be found in the dissenting opinion of Chief Justice Wallin. The majority of the court examined the record in its entirety, including the pleadings, stipulations and the evidence, before reaching and announcing its conclusion that the question of the defendant's liability upon this note was in issue for determination, and we are not now able to see how any other conclusion can be reached upon the record.
The plaintiff, after alleging the execution and delivery of the $500 note and the mortgage securing it, alleged in paragraph 6 that on the 9th day of December, 1889, he made "with said S.W. McLaughlin a new loan of $880 to be applied to the cancelation of the aforesaid mortgage by said McLaughlin." . . . Paragraph 7 alleges "that said S.W. McLaughlin failed to pay the consideration agreed to be paid by him to said plaintiff for the execution and delivery of the last described note, in this, that he failed to pay said prior mortgage debt of $500, or secure the release and cancelation of the said prior $500 mortgage" . . .
It is entirely plain that the pleader did not intend to admit his liability on the $500 note, or that the legal effect of the giving of the $880 note was not to discharge the prior note. It is clear that the allegations of non-payment refer to non-payment by McLaughlin and not by the plaintiff. The sole and only purpose of making Miss Andrews a party to the action was to have the question of plaintiff's liability on the note then owned by her judicially determined. That the question of his *Page 796 liability on said note was in issue under the pleadings thus framed is not disputed. Chief Justice Wallin, in his dissenting opinion, agrees that "Upon the issues so framed the vital question of fact to be determined in the trial court was whether the Andrews note had or had not been paid." The correctness of this last statement would be readily admitted if it were modified by the further statement that the fact that McLaughlin did not pay the money to Miss Andrews has never been in issue, either in the pleadings or under the evidence, and that the only issue was whether the execution and delivery of the $880 note and mortgage under the facts alleged and proved amounted in law to payment.
But whether the question be considered as one of fact or of law it is agreed that the question of the plaintiff's liability was in issue under the pleadings. The stipulation in question was entered into after the case was called, and is an admission, among other things, of the truth of the allegations of paragraph 6, and that portion of paragraph 7 both above quoted.
Now, as we have seen, these allegations in the pleadings were considered and treated as forming an issue as to plaintiff's liability on the $500 note. Just why any other meaning should be given to the same language when incorporated in the stipulation, we are unable to understand. In referring to this stipulation, in the majority opinion, we said: "It is certain that plaintiff's counsel did not intend to confess judgment against his client on this note by this stipulation; the trial judge did not believe he had any such purpose, neither did defendant's counsel."
The accuracy of the foregoing statement is vigorously denied by counsel for petitioner. The record, however, upon which our conclusion is based, does not sustain his denial. It appears from the abstract that immediately after entering into the stipulation, the plaintiff was called as a witness on his own behalf, and examined by his counsel in reference to the $500 note. Plaintiff's counsel also introduced a number of exhibits, including the two interest coupons paid by him, also the letters from Fish Cary referred to in the majority opinion, which could have no possible relevancy upon any other issue than that of the plaintiff's liability upon this note. The record also shows that the trial judge, with the stipulation then fresh in his mind, examined this *Page 797 witness with the evident purpose of eliciting a more accurate statement from plaintiff of the agreement made by McLaughlin through Abrams as to discharging the $500 note. The following questions were asked by the court:
"Q. I want you to repeat again just what was said, as nearly as you can remember, between you and Abrams in 1889, when you made this application for $300 (referring to the $880 loan)?
"Q. You at that time had no knowledge that it (the $500 note) had been assigned, or did you think of the matter at all?
"Q. Why didn't you at that time call for your note (the $500 note)? or a satisfaction of the mortgage?
"Q. Nothing said about returning it (the $500 note) to you at all?" The record also shows that counsel for defendant cross examined this witness at great length, a large portion of it being directed to the elicitation of facts important only in determining the plaintiff's liability on the note in question. Among other questions asked were the following:
"Q. What arrangement was made at that time about the payment of the $500 note and mortgage; anything said about that?
"Q. Can you give the substance of the conversation that you had with Mr. Abrams on that subject; what you both said about that part of it?
"Q. You expected them to take care of it?
"Q. You knew the $500 note was not due, did you not?
"Q. You knew he could sell it if he wanted to, didn't you?
"Q. Then you left it for Mr. Abrams and McLaughlin to take care of and satisfy the $500 note and mortgage?
"Q. How was it you never made any effort to find out whether they had paid it or not?"
Again, when this witness was testifying in direct examination, in reference to the letters received from Fish Cary, and they were being offered in evidence, the record shows the following stipulation by defendant's counsel: "The defendant concedes that there is no point made on the fact that the letters were written by John T. Fish, of Milwaukee, that at the time the letters were written, said Fish represented Fish Cary in regard to this claim." It will be noted that *Page 798 Fish Cary in their agency and correspondence were connected only with the $500 note, and that "this claim" as to which evidence was being introduced was the $500 note.
It is proper to ask why the plaintiff introduced this testimony? Why the court intervened and examined this witness upon this question, and why counsel for defendant cross examined upon it, if the question of plaintiff's liability had just been intentionally and conclusively admitted by the stipulation as counsel for petitioner so strenuously insists in this court? It is apparent that the testimony referred to had no relevancy upon any other issue.
In addition to the foregoing, we have the stubborn fact that the district judge, who tried the case, and heard the stipulation and the subsequent arguments of counsel upon the merits, entered judgment canceling this note, which, if the present contention of counsel for petitioner be correct, the parties had stipulated in his presence represented a legal obligation upon which the plaintiff was absolutely liable.
The facts disclosed by the record may be misleading, and counsel's assertion of facts not of record may be true. The only safe and proper course, however, in determining cases is to determine them upon the record, and upon this record we can but conclude that the construction of this stipulation for which the petitioner contends in this court is not within the intention of the parties when it was entered into in the district court. It need hardly be said that a stipulation of fact deliberately entered into is binding, but it is equally true that a stipulation should not mean one thing in the district court, and an entirely different thing in this court upon a retrial.
The principles by which we must be governed in construing this stipulation are well stated in 20 Enc. Pl. Pr. pp. 658-660, as follows:
"The entire stipulation is to be considered and not an isolated part thereof. . . . It is to be interpreted with reference to the subject matter and is to be read and construed in the light of surrounding circumstances, including the state of the pleadings, the allegations therein, and the attitude of the parties in respect to the issues. . . . The construction which the parties have by their use placed upon an ambiguous stipulation is entitled to great, if not controlling, weight . . . and an appellate court is strongly inclined to adopt the construction *Page 799 placed upon a doubtful stipulation by the trial court." In urging us to adopt his construction, counsel for petitioner instead of asking us to consider the stipulation as a whole, asks us to give effect to only a portion thereof, and to utterly disregard the construction placed upon it at the trial by the parties themselves, and to utterly ignore the construction placed upon it by the trial judge. Such a flagrant violation of settled rules of construction finds no favor with the majority of this court.
Neither is the third proposition advanced by petitioner as a ground for a rehearing, viz.: that in reliance upon the stipulation he refrained from taking and producing evidence upon this question, sustained by the record. As already stated, it is agreed that the question as to the plaintiff's liability upon the $500 note was in issue under the pleadings. The record shows that the stipulation in question was not made until after the trial of the case was entered upon. It is not possible, therefore, that the defendant was prevented or induced to refrain from taking testimony by this stipulation, for the very ample reason that it was not made until after the trial commenced.
We may say in conclusion that we do not agree with counsel that "both morally and equitably Brooks ought to recover and Prescott ought to pay." Our duty is of course confined to determining the question of the plaintiff's legal liability, but in this case, in our opinion, the plaintiff's legal liability corresponds with the equities of the case. The defendant now has judgment for the full amount of his $880 note, and that represents the entire sum received by plaintiff from McLaughlin upon both notes. Pending this action to determine the amount of plaintiff's debt, and with full knowledge of the facts, defendant purchased the $500 note, and this after alleging in his answer that it had been paid in the manner and form as found by the trial court, and by the majority of this court, to-wit: by the subsequent giving of the $880 note and mortgage. He purchased it at his peril. Under these circumstances it is not inequitable, we think, that a court of justice should deny him a recovery upon a note which he had thus solemnly averred was paid.
No other grounds than those referred to are advanced. The petition, therefore, will be denied.
MORGAN, J. concurs.
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