154 Wis. 69 | Wis. | 1913
It is admitted that defendant Gunsten was an. accommodation maker of tbe note if it was executed under sucb circumstances as to constitute bim a maker in any sense. Plaintiffs claim they were holders, in due course, which claim the defendant Gunsten disputes. The trial court, in the disposition of the case, evidently treated plaintiffs, as such holders, and we shall assume that they were. That raises the question whether or not total or complete drunkenness on the part of the accommodation maker of a note at the time of the execution and delivery thereof is a defense as against a holder due course.
On the grounds of public policy and the necessities of commerce some courts have held that complete drunkenness on the part of the maker of a note at the time of its execution and delivery is no defense against a holder in due course. State Bank v. McCoy, 69 Pa. St. 204; McSparran v. Neeley, 91 Pa. St. 17; Smith v. Williamson, 8 Utah, 219, 30 Pac. 753. The basis for the rule is thus stated by Joyce, Defenses to Comm. Paper, sec. 69:
“The reasons underlying this rule are that when a man has voluntarily put himself in such a condition and a loss must fall on one of two innocent persons, it should fall on bim who occasioned it. It is also founded on principles of public policy and the necessities of commerce. The circulation and currency of negotiable paper should not be unnecessarily impeded, and if drunkenness of the maker were a defense to a note in the hands of an indorsee it would clog and embarrass the circulation of commercial paper, and no man could safely take it without ascertaining- the condition of the maker or drawer when it was given, though there be nothing unusual or suspicious about the appearance of the note.”
That this rule is founded, at least in part, upon substantial grounds of public policy cannot be denied, though it should be observed that drunkenness alone, without the fraud or fault of another, does not lead to the signing of notes. In
In Bursinger v. Bank of Watertown, supra, tbe contract under consideration was tbe assignment of an insurance policy, and tbe court said:
“The evidence tended to show that, by reason of bis intoxication, be was incapable of comprebending what be was doing at the time be executed said assignments, and was therefore within the well established rule of law that a drunkard, when in a complete state of intoxication, so as not to know what be is doing, has no capacity to contract. 1 Benj. Sales (Am. ed. Corbin) 42; Gore v. Gibson, 13 Mees. & W. 623; Cooke v. Clayworth, 18 Ves. Jr. 12; Story, Cont. (4th ed.) §§ 44, 45, and cases cited in notes; Belcher v. Belcher, 10 Yerg. 121; French's Heirs v. French, 8 Ohio, 214; Jenners v. Howard, 6 Blackf. 240; Mitchell v. Kingman, 5 Pick. 431; Webster v. Woodford, 3 Day, 90; Seawer v. Phelps, 11 Pick. 304; Rice v. Peet, 15 Johns. 503.”
In Burnham v. Burnham, supra, tbe rule is stated thus:
“A person addicted to the habitual and excessive use of intoxicating liquor is not incompetent to enter into contracts and convey property, unless it appears tbat actual intoxication dethroned bis reason, or tbat bis understanding was so impaired as to render him mentally unsound when tbe act was performed. Johnson v. Harmon, 94 U. S. 371; Van Wyck v. Brasher, 81 N. Y. 260; Reinskopf v. Bogge, 37 Ind. 207.”
Tbe reason for tbe rule is tbat there can be no valid contract where there is no mind capable of contracting. Tbat drunkenness may be so complete as to render a person utterly incapable of comprehending tbe nature of bis acts or tbat be is acting at all is a fact as sad as it is true. “Drunkenness,” says Tiedeman, “is, in legal contemplation, an aberration of mind similar in its effect upon tbe reasoning faculties as tern-
“The title of a person who negotiates an instrument is defective within the meaning of this act when he obtains the instrument, or any signature thereto, by fraud, duress, or force or fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud and the title of such person is absolutely void when such instrument or signature was so procured from a person who did not know the nature of the instrument and could not have obtained such knowledge by the use of ordinary care.”
And sec. 1676 — 27 reads:
“A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon except as provided in sections 1944 and 1945 of these statutes, relating to insurance premiums, and also in cases where the title of the person negotiating such instrument is void under the provision of section 1676 — 25 of this act.”
By the provisions of this law it will be seen that a holder in due course takes no title where the note was absolutely void in its inception, as where there was no maker capable of executing the instrument. This result follows for the obvious reason that no life, or validity, can be given by transfer to
Plaintiffs argue that the rule of ordinary care as applied in negligence cases obtains under the provisions of sec. 1676 —27 of the Negotiable Instrument Law. It is not necessary to decide the question in this cáse. The jury found that at the time Gunsten signed the note he was so completely intoxicated that he was temporarily deprived of his reason and understanding. Manifestly, while in such condition, the rule of ordinary care does not apply. He was incapable of exercising any care whatever. Nor can it be held that he should have exercised care not to get drunk, for, as before observed, the signing of notes is not the usual or probable result of drunkenness. It is otherwise as to a personal injury. A man may well reasonably anticipate that if" he gets drunk and becomes unable to care for himself he 'may, without the fault of another, sustain bodily harm, or even death itself. But a drunken man, if left alone and not taken advantage of by others, is not, as a mere result of the drunkenness, likely to sign notes or execute any other contracts. The law does not favor drunkenness; nor does it place in the hands of a drunkard any shield against his conscious or rational acts. It simply says that when, through drunkenness or any other means, a man is temporarily or permanently wholly incapacitated from exercising his rational faculties, then he shall not be liable upon what purports to bé a pontract entered into while in such state, because a mind bereft of reason or conscious rational action is incapable of consenting or contracting. In speaking of the early English doctrine holding that a man should not be allowed to stultify himself by alleging his own lunacy or imbecility, Daniel says: “Such a doctrine sounds more like the gibberish of a lunatic than like the decree of a
By the Court. — Judgment affirmed.