141 Wis. 228 | Wis. | 1910
The direction of a verdict for the plaintiff is sought to be supported, first, on the authority of Marling v. Jones, 138 Wis. 82, 119 N. W. 931, for that, as asserted, the-accommodated party, and Herman as its agent, had actual authority, by force of the note itself, to negotiate it, which authority was not limited by the maturity of the note. That, rule of law was unambiguously adopted by this court upon weight of authority after carefully reviewing a conflict of decision elsewhere. The right of the creditor was not predicated upon an innocent holder’s immunity from equities as between the parties, but upon the view that no equities existed to defeat such a note; that the accommodation makers- had, by proper construction of their instrument, agreed to pay any one who should lend the amount of the note to the aecommodatee either before or after maturity. This case presents a very marked difference in facts, for here, conceding that Herman acted within his authority, the accommodated party had once been accommodated when Wight lent money upon the note, which afterwards had been paid in full and returned to the original custody, all of which appeared upon the face of the-
2. Justification of tire action of the trial court is also attempted on the ground that, by the discount of the note for full value to Wight, he acquired a perfect title as against all parties, and that such title he might effectively transfer to an
“A holder who derives, his title throttgh a holder in due course, and who is not himself a party to any fraud, duress or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to such holder.”
If Herman made the sale to Wight fraudulently he could not, under this statute, acquire the good title which Wight held only by virtue of being a holder of the instrument in due course. When it came back to his hands it reassumed the same position it formerly occupied, and he could dispose of it to another, not an innocent holder, only within the limits of his own rights and authority. The question whether Herman
There are doubtless other grounds on which plaintiff may be entitled to recover in whole or in part against all or some of the defendants, but we find all of them so involved in conflict of evidence or of inference of fact that they cannot support the direction of verdict upon the present trial. Thus, although Herman did not pay over to his principal the actual proceeds of the sale of the note to Wight, which perhaps would raise an inference of fraud, that inference might be rebutted if it appeared that his arrangement or previous dealings with the Buckleys showed an understanding that he should retain such proceeds as a general credit to them on account, to meet calls on him as they might be made subsequently, or to offset advances theretofore made; of which, indeed, some vague suggestion appears. In such case the sale to- Wight might be legitimate; Herman not a party to any fraud, and therefore free to buy the perfect title which Wight held. Then would arise the question whether he did buy it or merely make payment as Buckleys’ agent: affected again by the inference to be drawn from their dealings as to the scope of his agency contract and duty. Again, there was some evidence offered or received that Herman had advanced or bound himself to advance $500 on this note when placed in his hands. Doubtless if he parted Avith value on the faith of the note he would have right therein as security to that extent. Whatever rights Herman in law had were doubtless transferred to plaintiff, in absence of actual participation by the latter in some fraud. Sec. 1676—20, Stats. (Supp. 1906); sec. 2605, Stats. (1898) ; Webber v. Quaw, 46 Wis. 118, 49 N. W. 830.
By the Court. — Judgment reversed, and cause remanded for a new trial.