First National Bank v. Miller

139 Wis. 126 | Wis. | 1909

Marshall, J.

The court is of the opinion that, by the fair meaning of the instrument sued on, payment of attorney’s fees was provided for only on collection by an attorney after dishonor'. That would seem to be the case as an original matter, and like clauses in similar instruments have uniformly received that construction, as indicated in cases cited-to our attention and others: Sperry v. Horr, 32 Iowa, 184;. Shenandoah Nat. Bank v. Marsh, 89 Iowa, 273, 56 N. W. 458; Farmers’ Nat. Bank v. Sutton Mfg. Co. 52 Fed. 191.

Such being the case the instrument was negotiable under sec. 1675 — 2 of the Negotiable Instrument Law (ch. 356,. Laws of 1899), prbviding that “the sum payable is a sum eer-' tain . . . although it is to be paid . . . with costs of collection or an attorney’s fee, in case payment shall not be made at maturity.” That was considerately designed to supersede the judicial rule in Morgan v. Edwards, 53 Wis. 599, 11 N. W. 21; First Nat. Bank v. Larsen, 60 Wis. 206, 19 N. W. 67; Peterson v. Stoughton State Bank, 78 Wis. 113, 47 N. W. 368; W. W. Kimball Co. v. Mellon, 80 Wis. 133, 48 N. W. 1100, and similar cases.

In all situations where the Negotiable Instrument Law passed in 1899 conflicts with our adjudications, as to instruments made subsequent to that time the former rules.

When the Negotiable Instrument L^w was enacted a conflict of judicial authority on the subject in hand and others-existed. In some states a clause similar to that here was held to render the amount payable on the instrument uncertain and to destroy its negotiability. In many other states the obligation as to costs of collection -was held to be contingent upon collection after dishonor, to appertain to the remedy for a breach of the primary contract, not to the debt itself, and, therefore, not to render the amount uncertain, militating-against negotiability. To supersede the conflict by a general rule the .provision of the Negotiable Instrument Statute-quoted was incorporated therein.

The law relating to proceedings to fix the liability of an indorser of a promissory note, in case of dishonor by the maker, was different in some states than in others, and for harmony on that as to the time and manner of giving notice of dishonor to the indorser it was provided by sec. 1678 — 34 of the Negotiable Instrument Statute that “Where the person giving and the person to receive notice reside in different places, the notice must be given ... if sent by mail” by depositing it “in the postoffice in time to go by mail the day following the day of dishonor, or, if there be no mail at a convenient hour on that day, by the next mail thereafter.” Here notice was not sent till after time for mail on the first secular day after dishonor though there was ample opportunity to do so. The departure time for the mail was between 9 and 10 o’clock of such day. That was certainly a convenient time within the meaning of the statute. No excuse is found in the evidence for not depositing the notice with postage fully paid so as to have reached the respondent by such mail. The deposit on the evening of that day, after ordinary business hours and long after the closing of the mail for such day, as regards the route by which it must have been known the notice would reach respondent, if at all, clearly was too late. If that were not so, failure to prepay the postage so notice would go out by the next mail and failure to remedy the mistake after knowledge thereof for several days thereafter released the indorser beyond any possible question.

By the Court. — Judgment affirmed. ,;