204 Wis. 256 | Wis. | 1931
The following opinion was filed January 13, 1931:
The controversy in this case relates very largely to questions of fact and a very complicated and intricate factual situation is presented by the evidence and findings. Were it not for the fact that two questions of law are presented, which are somewhat novel and which are
The principal contention of the defendant Canning Company is that plaintiff’s acceptance of the- $20,000 draft was conditional or qualified. Sec. 118.16, Stats. (Negotiable Instruments Act), provides:
“An acceptance is qualified, which is:
“(1) Conditional, that is to say, which makes payment by the acceptor dependent on the fulfilment of a condition therein stated.”
The acceptance by the plaintiff of the $20,000 draft was as follows:
“November 10, 1927, accepted. Payable February 8, 1928. Payable at the office of undersigned.
“Livingston County Trust Company, “Geneseo, New York.
“By P. L. Euchner. O.K. C.N.L.”
We have no difficulty in concluding that any arguments based upon a claim that there was a qualified acceptance of the $20,000 draft are not well founded.
The defendant Canning Company further claims that its agent, the Acceptance Corporation, was without authority to enter into an arrangement which it made with the plaintiff bank; that the Acceptance Corporation was an agent solely to procure the acceptance and discount of the drafts forwarded to it by the defendant Canning Company and remit the proceeds. The difficulty with this argument is that the $10,000 which was returned by the Acceptance Corporation to the plaintiff was immediately placed to the credit of the defendant Canning Company, and had the transaction been honestly conducted there would have been outstanding as to
The complaint in this case contained two counts — one on account of the $10,000 draft and one on account of the $10,000 remaining due upon the $20,000 draft, — and whether the case be considered upon one or the other count the circumstances are the same. The defendant Canning Company has had the benefit of the $10,000 of the plaintiff’s funds, which it agreed to replace with the plaintiff by virtue of the terms of its acceptance agreement and which sum has not been replaced. The fact that the defendant Canning Company’s agent. embezzled some of its funds does not affect its liability to the plaintiff.
The second contention made by the defendant Canning Company is that it is entitled to credit for the amount received by the Livingston Bond & Share Company on a resale of the Modern Service Finance Company stock in the amount of its indebtedness to the plaintiff. This claim is based principally upon the fact that one P. C. Euchner is the man who
There are other matters argued in briefs of counsel, but we are of the opinion that they do not require separate treatment and discussion. The trial court filed an exhaustive opinion containing a detailed statement of the facts and his views of the law, in which we fully concur.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on April 7, 1931.