104 Wis. 493 | Wis. | 1899
The most important assignment of error presented for consideration is that the court erred in not setting aside the verdict for want of evidence to support the finding that Rambusch was defendant’s agent to collect, from plaintiff on the note and mortgage. The pretense on the part of respondent that such an agency existed was the basis of his cause of action. The finding to that effect was necessary to the recovery. We will notice in detail the evidence in the record upon which such finding was- made.
Harvey, cashier of the Ei-rst National Bank of Beaver Dam, the bank through which defendant obtained the note, some time after the latter circumstance occurred and prior to the making of the disputed payment, wrote to» Rambusch stating the. character of the note regarding its due date, in answer to a letter asking for that information. He added a request that if Bcurtel expected to make the optional payment he desired that Rambusch would let him, Harvey,
The importance of protecting the holders of commercial paper is so great that to warrant finding that a person who assumes to have authority to receive payment of the principal sum on any such paper, has such authority, possession
But it is said that the note was payable at the Citizens’-. Bank of Juneau, and that such circumstance of itself constituted such bank appellant’s agent to receive the money on the note. On the contrary, the rule is that unless the note is at the stated place of payment for the purpose of its collection, which latter fact is not presumed from the mere-possession of the paper in advance of the due date, a deposit of the money in, or payment of it to, the proper custodian of money at such place, does not discharge the debt in the absence of clear proof of express authority to receive such -money. Randolph, Comm. Paper, § 1451; Cheney v. Libby, 134 U. S. 68; Bank of Montreal v. Ingerson, 105 Iowa, 349; First Nat. Bank v. Chilson, 45 Neb. 257; Glatt v. Fortman, 120 Ind. 384; Hills v. Place, 48 N. Y. 520. The only effect of making a note payable at a particular place is to entitle the payor to the privilege of taking up his paper at such place on the due date thereof. It implies an obligation on the part of the holder of the paper to deposit it at such place so that .such privilege can be exercised. A failure to perform that obligation, if the payor at the stated
It is further suggested to support the judgment that the respondent paid $531 on condition of a satisfaction of the mortgage being given in return. It is a sufficient answer to that, as appellant’s counsel says, that the amount alleged to have been conditionally paid was due to the appellant. It was not offered as a compromise of a disputed amount, as there was no dispute whatever but that the amount offered was actually due. Uo part of the disputed amount was paid or offered. The $531 was paid, not as a compromise, but to put respondent in a wrong, rendering him iiable to the statutory penalty for failing to satisfy the mortgage. TTecessarily, the intention of the appellant was to make an unconditional tender of the amount supposed by him to be due upon the note and mortgage.
So it follows that no cause of action whatever, on any theory, was established against the appellant by the evidence. There was'a motion for the direction of a verdict in appellant’s favor at the close of the evidence,-and it should have been granted.
By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.