53 Wis. 537 | Wis. | 1881
We think it was in effect proved, as well as found by the circuit court, that the plaintiff, before taking the order hereinafter considered, knew that Bratt & Bailey had assumed, on sufficient consideration, to pay all of the debts of the firm of Hoile & Bratt. Iloile having sold out his interest in the firm of Iloile & Bratt, and Bratt having assumed to pay all the debts of the firm, and Bailey having purchased such
“ SteveNS PoiNT, February 9, 1880.
“Mr. H. D. McCulloch: Pay 1. Brill, or order, $147.31 out of the II. Bick draft, when. paid.
[Signed] “ D. G. Bailey.”
In explanation of this order it is not very clear, but infera-ble from the evidence, that McCulloch was an officer of the bank, and held the draft of either Bratt'& Bailey, or of Bailey alone, on one H. Bick, for lumber shipped to him by them, and that this order was on that particular fund when it should come into the hands of McCulloch, or into the bank, in payment of the Bick draft. It does not appear in evidence that Bratt knew anything about this transaction, except what was told him by Bailey, which, as the statements of Bailey testified to by Bratt, ought to have been ruled out as hearsay testimony; and there is no evidence of any contract or understanding between Bratt & Bailey and the plaintiff -in relation to this order, other than appears upon its face. There was a mere mention, by one of the witnesses, that the plaintiff gave Bailey a receipt for the order, but the receipt itself or its terms did not appear.
This order was payable out of a particular fund, and the time of the payment is not fixed, and it is conditional and not payable absolutely, and is, therefore, not negotiable as a bill of exchange. Story on Bills of Ex., §§46-50. There can be,
The fact that the order is drawn by Bailey alone, precludes the very idea that it was taken as a substitution for the joint liability of Bratt & Bailey, or as payment of their joint debt, or in such manner as to extend the time of such payment. If the order had been payable absolutely and generally, and at a time certain, even then the implication that it was taken in payment, and that it extended the time of the payment of the original debt, might be repelled by proof that it was taken as collateral security only. But as to this order there is no such implication or inference, and, if the time was extended at all, it must have been by agreement outside of the order itself, and no such agreement was proved in the ease. Paine v. Voorhees, 26 Wis., 522; 2 White & T. L. C., 1916; Wade v. Staunton, 5 How. (Miss.), 631; Ripley v. Greenleaf, 2 Vt., 129; Weakly v. Bell, 9 Watts, 273; Bank of Utica v. Ives, 17 Wend., 501; Oxley v. Storer, 54 Ill., 159; Chickasaw Co. v. Pitcher, 36 Iowa, 593.
There is certainly nothing in the taking of this order or in the transaction, so far as we know, that would prevent the appellant, Hoile, at any time from paying the debt and suing
By the Gourt. — The judgment of the circuit court is affirmed.