Batavian Bank v. McDonald, 77 Wis. 486

77 Wis. 486 | Wis. | 1890

Tavxob, J.

After a careful consideration of all the evidence in this case, we are very strongly impressed that the verdict is not supported by the evidence, and ought to have been set aside by the learned circuit judge on the motion of the appellant. Everything -which was said and done by the bank officers at the time the interest in advance was paid on these notes on the 18th of October, 1888, shows very clearly that not only Mr. Reynolds understood that in consideration of the payment of such interest the time for the payment ’on such notes should be extended, but the bank or its agents so understood it, and gave Reynolds the right to so understand it. In the first place, Mr. Bentley, the cashier, does not in his testimony in any way contradict Mr. Reynolds as to what conversation was had between them at the time the interest was paid; and Reynolds says: “ Bentley told me if I would pay the interest in advance they would carry me.” Again, he says: “ I asked them to extend my paper, and he said he would if I paid interest.” As affirming the truth of the statement made by Reynolds, we have the fact that the indorsement on the back of the notes of the time when the same would become due was changed on the $1,000 note from September I, 1888, to December 9, 1888, and then again from December 9, 1888, to February 10, 1889, and on the $1,500 note from October I, 1888, to January 8, 1889. This was not only done immediately upon the payment of the interest in advance, but the notes were placed with other notes becoming due at the same time, to wit, December 9, 1888, and January 8, 1889; and it is fully admitted that thereafter no call, either upon Reynolds or the appellants, for the payment of these notes was made until the $1,500 note was about due, January 8, 1889, and until the $1,000 note was about due, February 10, 1889. All the acts and conduct of the bank officials tend very clearly to establish the contention of the appellants that the time for the payment of these notes was extended as claimed by them. To our minds' there is nothing in the evidence of Bentley, the cashier, which tends to overturn the- conclusion which follows from the evidence on the part of the appellants. His statements that he did not intentionally extend the time certainly cannot he permitted to do away with the effect of the facts proven, which clearly establish the fact that an extension was granted. As to his other answer to the question, “ Hid you at any time give Eeynolds an extension of either of these notes ? ” that he “ did not,” it is probable that the question should have been ruled out by the court; but, admitting that it was a proper question to be answered by the witness, his answer to the next question propounded shows that he based his first answer upon his claim that, at some time before this interest was in fact paid, he had had a general conversation with Eeynolds about extending his notes generally; and that in such conversation he had told Eeynolds that if he wanted any extension he must get new notes indorsed by the same parties. Bentley nowhere in his evidence pretends to say what conversation was had when the interest was paid on these notes, but says he does not recollect what was said. The testimony of Eeynolds as to what was said then is not overcome by an allegation that something else was said at another time. It seems to us very clear that having taken the interest from Eeynolds in advance upon these notes without requiring any consent from the indorsers, or without requiring Eeynolds to get the notes renewed by the in-dorsers, is strong evidence tending to estop the bank from insisting that there was no extension of time, and that, after receiving such interest in advance, followed by the other acts of the bank in regard to these notes, no court would sustain an action on them against Eeynolds until the time for which the interest had been paid in advance had expired, unless the bank could show affirmatively and clearly that, notwithstanding such receipt of interest in adVance, the bank reserved to itself the right to bring an action at any time on such notes within the time for which the interest had been paid. The payment of the interest in ■advance, and the receipt of the same by the bank, without further proof, would not only justify a court in holding that the time for payment had been extended, but standing-alone would be conclusive as to the extension. Brandt, Sur. § 305, and cases cited; Blake v. White, 1 Younge & C. 420: Crosby v. Wyatt, 10 N. H. 323; Wakefield Bank v. Truesdell, 55 Barb. 602; Siebeneck v. Anchor S. Bank, 111 Pa. St. 187; Randolph v. Fleming, 59 Ga. 776; Woodburn v. Carter, 50 Ind. 376; Warner v. Campbell, 26 Ill. 282; Peoples Bank v. Pearsons, 30 Vt. 711; Rose v. Williams, 5 Kan. 483; Christner v. Brown, 16 Iowa, 130.

This being the rule, there does not seem to us to be any evidence in this case which should be permitted to defeat the appellants’ claim that the time for payment had been extended without the assent of the sureties. It is possible that the cashier, Bentley, did not intend to release the sureties on the note, but it seems to us very clear that he consented to an extension of the time of payment to Reynolds when he received the interest in advance, and if he so extended the time to Reynolds with no intent to discharge the sureties, still the sureties are discharged in law by the extension of time of payment to the principal debtor without their assent, and the intention of the cashier cannot change the result.

We think there is a greal deal of good, sound sense in the remarks of Lord Baron Ltudhuest, in the case of Blake v. White, above cited. He says: “ If it appeared simply that six months’ interest had been given, what could the imagination suggest but a contract ipsissimis verbis that the creditor should not sue for that time. Besides, the interest being paid, would a court of equity endure that the creditor should put that interest into his pocket, and the next day sue for the principal?” ¥e think, clearly, neither, a court of equity or law would permit such a proceeding unless there was the clearest proof that such was the agreement between the creditor and his interest-paying debtor at the time the interest was paid and received in advance. "We are satisfied that there is no evidence in this case which ought to sustain a verdict that such agreement was made between the parties, or that there was any such understand-: ing between them when such interest was paid and received in this case.

We think the learned circuit judge should have set aside the verdict in this case on the ground that it was entirely unsupported by the evidence.

By the 'Court.— The judgment of the circuit court is reversed, and the case is remanded for a new trial.