71 Wis. 578 | Wis. | 1888
If this were an action between the original parties to the note in suit, it is plain there could be no recovery, because it appears that the sale of the farm was not completed. Austin refused to pay the $1,600, and the contract was abandoned, so that the commissions, which ■were the sole consideration of the note, were not in fact earned, which would be a perfect defense. But it is claimed that the plaintiff is an innocent purchaser of the note for value, and is not affected by any equities which may exist between the original parties to the paper. We assume, as a, fact, that the plaintiff is such a holder, and the case will be considered in that light. Yery elaborate briefs have been filed, and numerous errors are assigned to the rulings of the trial court. It would be burdensome to attempt to notice in detail these various assignments of error, and we do not deem it necessary that we should do so for a proper disposition of the case. There are really but two questions to be considered: (1) Was there a delivery of the note, conditional or otherwise, so as to give it a legal existence? (2) If not, were the defendants guilty of such negligence in suffering or in not preventing Stevens from taking and retaining the note as renders them liable for its payment in the hands of an innocent party?
Now, as to the. delivery, the jury found, in answer to
The question as to the defendant’s negligence was likewise submitted to the jury upon all the evidence. The jury found that the defendants were not guilty of any negligence in not preventing Stevens from taking the note from the store. It appears that the note urns signed by the defendants at their store on the evening of its date, and it is conclusively shown that, while it lay on the desk where it had been signed, Stevens, of his own motion, without the consent, either express or implied, of the defendants, took the note from the desk, saying, as he did so, “ I will take charge of this,” put the note in his pocket, and went out of the store. The next morning he sold the note to Mr. Dun-widdie. Mr. Sale, who had drawn up the contract for the sale of the farm, and who had acted in the transaction, to some extent at least, as the attorney of the defendants, was in the store at the time Stevens took the note, as was Mr.
By the Court.— Judgment affirmed.