Melms v. Werdehoff

14 Wis. 18 | Wis. | 1861

By the Court,

Cole, J.

We are not able to discover any error in tbe record or proceedings in this case. The charge of the court appears to be substantially correct, arid properly states the rule of law applicable to the facts disclosed on the trial. For to our minds it is very clear, if Melms & Co. signed and delivered the note mentioned in the pleadings, to the payee, Busack, and the latter obtained the signature of the respondent after it was thus delivered, who signed it, as the court states, in the belief that Melms & Co. were the actual debtors, relying on the legal import and effect of the note, that then Melms & Co. are estopped from alleging now that the note was an accommodation note and that the respondent is liable as a co-surety. The respondent did not know, and could not know, that they were accommodation makers and had executed the note in that character. He had the right to assume, and indeed nothing was more natural than that he should assume, that they were the makers of the note, and of course, primarily liable for its payment. Busack had apparently a good title to it, and for aught he knew, had a perfect right to collect the amount of them when the note became due. Busack asked the respondent to sign the note so as to enable him to negotiate it with Pritzkow, and seeing that the note was given by the firm of Melms & Co., and knowing that they were responsible, he signed it for the purpose indicated. He did not suppose that he was signing the note as a security with them. There is nothing in the case that shows he did know the -note was not given by the ostensible makers in the usual course of business. He had a right to assume that it was, and to act upon that presumption. They now allege that it was an accommodation note, and that the payee agreed to procure the name of the respondent or Spoerl as a co-surety. If so, they must look to the payee for redress, and not to the respondent. He knew nothing about their understanding with the payee, if indeed they had such an one as they now insist existed. They had invested tbe payee with tbe character of creditor, and enabled him to deal with the world in that relation as re-gpected this note. And now if they or the respondent must suffer damage, the loss should rather fall upon them, who have been the least vigilant, than upon him who signed the note, under the circumstances, as surety for them, supposing they were primarily liable for its payment.

The judgment of the circuit court is affirmed, with costs.