131 Wis. 642 | Wis. | 1907
Tbe constitutionality of ch. 438, Laws of 1903,, as applied to notes given for lightning rods, is settled by Quiggle v. Herman, ante, p. 379, 111 N. W. 479, marking tbe distinction from its application to patent rights considered in J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231.
Appellant contends that a note taken in disobedience of tbe statute above referred to, negotiable in form, and having nothing upon its face to indicate its consideration or that it bad been given in breach of such a statute, is valid and enforceable in tbe bands of an innocent bolder for value. This contention is met by the respondent by tbe assertion that such note has already been declared to be void by this court in J. H. Clark Co. v. Rice, supra, at page 458 (106 N. W. 234), and that a note absolutely void has no existence and can gain no validity by its negotiation even to an innocent bolder for value before maturity, and to this proposition be cites Chapin v. Dake, 57 Ill. 295; Weed v. Bond, 21 Ga. 195; Cunningham v. Nat. Bank, 71 Ga. 400; Snoddy v. Am. Nat. Bank, 88 Tenn. 573, 13 S. W. 127; Traders’ Bank v. Alsop, 64 Iowa, 97, 19 N. W. 863; Bayley v. Taber, 5 Mass. 286; Bridge v. Hubbard, 15 Mass. 96; Kendall v. Robertson, 12 Cush. 156, to which perhaps be might have added Walker v. Ebert, 29 Wis. 194; Kellogg v. Steiner, 29 Wis. 626; Keller v. Ruppold, 115 Wis. 636, 92 N. W. 364. We shall not deem it necessary to decide whether a promissory note or other contract given in disobedience of a statutory provision, where the statute is accompanied by a penalty upon its disobedience, is absolutely void in the absence of any statute declaring it so. That general subject with many of the authorities bearing upon it is discussed in the case of Laun v. Pac. Mut. L. Ins.
Conceding, for the purposes of the discussion, that because the giving of a note for lightning rods without red-ink declaration of its consideration upon its face is in defiance of ch. 438, Laws of 1903, it is thereby rendered invalid, as we have decided is a note executed on Sunday (Howe v. Ballard, 113 Wis. 375, 89 N. W. 136, and Brown v. Gates, 120 Wis. 349, 351, 97 N. W. 221, 98 N. W. 205), does it necessarily folloy that an innocent holder for value cannot recover thereon ? It was early decided by this court that a negotiable note, invalid between the original parties because given in defiance of a statutory prohibition accompanied by a penalty — i. e. one given on Sunday, but dated on Saturday, — would be enforced in the hands of an innocent holder having no knowledge of the illegal fact upon the ground of estoppel against the maker to-assert such fact. Knox v. Clifford, 38 Wis. 651. The same principle has been invoked to support a usurious negotiable note in the hands of an innocent holder, although the statute declared it “void.” Sage v. McLaughlin, 34 Wis. 550, 556. The general grounds' upon which estoppel in pais rests are described in Marling v. Nommensen, 127 Wis. 363, 369, 106
Eurther than this, our negotiable instrument statute, sec. 1676—27, Stats. (Supp. 1906; Laws of 1899, ch. 356), provides :
“A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon except as provided in secs. 1944 and 1945 of these statutes, relating to insurance premiums, and also in cases where the title of the person negotiating such instrument is void under the provision of sec. 1676 — 25 of this act.”
By the Oowrt. — Judgment reversed, and cause remanded for new trial.