Cork v. Bacon

45 Wis. 192 | Wis. | 1878

ObtoR-, J.

The grounds relied upon in his brief, by the counsel of the appellant, for the reversal of this judgment, are: 1st. That the burden ‘of proof was upon the respondent to show that no funds were in the hands of the drawee, or the bank upon which the check was drawn, for its payment, and that he offered no such proof. 2d. That the respondent was guilty of negligence and laches in not presenting the check to the drawee before he had failed and become a bankrupt.

The sole ground relied upon by the counsel of the respondent to sustain the judgment is, that the check was-fictitious or fraudulent, because drawn upon a bank which had no existence; and that therefore there was a present and continuing liability of the drawer to pay the money to the holder.

If the drawee of the check is sufficiently designated upon the check itself, or the holder knew, in proper time, upon whom or what bank the cheek was drawn, then the above positions assumed by the learned counsel for the appellant are unquestionably correct; for tbe bill of exceptions contains no such evidence, but most directly to tbe contrary.

The only questions really to be considered are those raised by the learned counsel for the respondent in support of the judgment, and which are only casually noticed bjr the counsel of the appellant. 1st. Does the check itself sufficiently designate the person or bank upon which it was drawn? 2d. If not, was- it shown in the evidence given, or proposed to be shown in the evidence offered and ruled out, that the respondent knew, in proper time, upon what person or bank the check was drawn?

By the reference to the check in the bill of exceptions, it appears that the check was a blank check °of the “First National Bank of Milwaukee.” The words “First National” were sought to be erased by parallel pencil lines, and the name of O. M. Tyler was written in pencil over them. The printed words “ Bank of Milwaukee ” are not erased. We think it can be ascertained with considerable certainty from an inspection of the check itself, that it was intended to be drawn upon O. M. Tyler personally. Ilis name is certain and unmistakable, while the additional words “Bank of Milwaukee ” are incongruous, ambiguous and meaningless as indicating or qualifying the person of the drawee, or as indicating the place where payment was to be made; and there is an apparent omission to erase them, through carelessness and not design; and, though a false description, it ought not to have deceived the payee, and could have been easily corrected if it had been of sufficient consequence to have attracted his attention. That part of the address so left unerased may be rejected, within the principle of the maxim, falsa demonstratio non nocet.

But if there is any doubt about the correctness of this view of the case, we think there was abundant evidence that both the original payee and the holder of the check had full knowledge who the drawee actually was, and of his place of business in Waukesha, in proper time to have obtained payment of the check upon presentation to O. M. Tyler, the drawee, and that both of them were guilty of negligence and laches in not so presenting it; that they held it at their own risk, and if, by the bankruptcy of the drawee, they have lost, it is by their own fault. Not only was the evidence allowed to be given competent and sufficient to prove these facts, but also the evidence sought to be elicited by the questions ruled out by the court was unquestionably proper and competent in the case; and we think the circuit court erred in rejecting this evidence. It is unquestionably the general'rule, that the drawee of a bill or check, whether an individual, copartnership or corporation, should be sufficiently expressed and designated upon it. Story’s Bills of Ex., § 58. But the reason of the rule is only to enable the payee or holder to know upon whom he is to call for acceptance or payment; and it has been held that when the name of the drawee was not inserted in the bill at all, but only the place where the payment was to be made, and where a person certain resided and did business, and only such person, the bill was sufficiently certain in that respect. Gray v. Milner, 8 Taunt., 739. In case of uncertainty as to the real drawee attempted to be expressed or designated, or any ambiguity in the address of the check, then, as in all cases of written contracts and their construction, extrinsic evidence is admissible as’to the subject matter and the parties, to make both certain and show who and what was intended. 2 Parsons on Con., § 550; McCullough v. Wainright, 14 Pa. St., 171; Jackson v. Sill, 11 Johns., 201. In this last case the court says: “You must always look beyond the instrument itself to some extent, in order to ascertain who-is meant. For instance, you must look to names and places.”

The situation of the parties and the nature of the subject matter of the contract may always be shown by parol, in construing it. In Lemon v. French, 25 Wis., 37, parol evidence was allowed to make certain the time when an acceptance of á draft was payable; and in Garrison v. Owens, 1 Pin., 471, parol evidence was allowed to show in what capacity or character, as a party or witness, a person signed a contract..

We think the motion for a new trial in this case, made by the counsel of the appellant, should 'have been granted.

By the Court. — The judgment of the circuit court is reversed, with costs, and the cause remanded for a new trial therein.

Ryait, O. J., took no part.