181 Wis. 19 | Wis. | 1923
There are many facts in this case as to which there is no conflict in the evidence. The bank was unwilling to lend the money to Sumner without security, and in order to obtain the loan for Sumner Wirt Monroe signed as surety. It was conceded that during the whole period he was financially responsible.
After Sumner removed to Minnesota the bank naturally looked to Wirt Monroe for payment and so notified him. Monroe' recognized the liability, and in order that he might have some security requested the bank to obtain a new note and a mortgage from Sumner. The testimony shows that he believed the bank would be more likely to succeed in negotiations with Sumner than he would. The testimony that the bank obtained the note and mortgage from Sumner for the accommodation of Wirt Monroe and as his agent is wholly undisputed, and the verdict of the jury to the contrary has no foundation whatever.
This note and mortgage and the original notes, as well as some Liberty bonds deposited by Wirt Monroe as security, were retained by the bank until Wirt Monroe paid in full the
Counsel for plaintiff contend that all testimony tending to prove the agency of the bank should have been excluded, and invoke the familiar rule that the name of the indorser signed upon the back of a negotiable instrument conveys his meaning and intention as fully ás if he had written out the obligation of the contract of indorsement in detail, and that the contract cannot be varied by parol. But as between in-dorser and indorsee there are certain limitations or exceptions to this rule. It has been frequently held that where there have been antecedent relations between the indorser and indorsee out of which equities have arisen, the indorser may prove these relations and the real nature of the transaction involved in the indorsement. Thus it has been held that the indorser may show as against his indorsee that the in-dorsement of a note was merely for collection (Johnson v. Schnabaum, 86 Ark. 82, 109 S. W. 1163, 17 L. R. A. n. s. 838; Allin v. Williams, 97 Cal. 403, 32 Pac. 441; Stack v. Beach, 74 Ind. 571; Lovejoy v. Citizens’ Bank, 23 Kan. 331; Howell v. McCarty, 77 W. Va. 695, 88 S. E. 181; Morris-Miller Co. v. Von Pressentin, 63 Wash. 74, 114 Pac. 912; Dale v. Gear, 38 Conn. 15, 9 Am. Rep. 353; 1 Daniel, Neg. Inst. (6th ed.) § 720a); and that an agent, in transferring-title to his principal by indorsement of negotiable paper, did not intend to incur personal liability (Farmers Sav. Bank v. Hansmann, 114 Iowa, 49, 86 N. W. 31; Texas Baptist Univ. v. Patton (Tex.) 145 S. W. 1063; Allin v. Williams, 97 Cal. 403, 32 Pac. 441); and that an indorsement by a principal to his agent was for a special purpose (B. F. Avery & Sons v. Miller, 86 Ala. 495, 6 South. 38; First Nat. Bank v. Nat. Marine Bank, 20 Minn. 63; Dale v. Gear, 38 Conn. 15, 9 Am. Rep. 353; 1 Daniel, Neg. Inst. (6th ed.) § 720a.
“But where the contest is between the immediate parties to the contract of indorsement, the modern tendency seems to be to permit the introduction of parol evidence to prove a different agreement from that imported by the blank indorsement. In other words, the presumption of law arising from the indorsement in blank is not deemed conclusive.”
“Where the rights of third persons are not affected, and the opponent is not a holder having paid value, ignorant of the circumstances attending the transfer, the courts as a general rule have permitted the introduction of parol evidence to show that at the time of transfer the transferrer stipulated against the liability imported by the blank indorsement of the instrument.”
In most of the cases above cited the indorsement was in blank, in others it was to order. There is undoubtedly much conflict in the authorities relating to the question whether an indorser may impeach his indorsement when sued by the indorsee, but we think that by the weight of authority, as stated by Mr. Daniel, “It may be shown that the indorsement was without consideration, as for instance that it was for the indorsee’s accommodation, or merely to transfer the legal title to the indorsee, he being in fact the owner of the paper; or that it was indorsed for collection, where the form of indorsement does not show that fact, or that it was indorsed merely to perfect an arrangement between the maker and indorsee” (1 Daniel, Neg. Inst. (6th ed.) § 720a), and that it may be shown that the indorsement was in trust for a special purpose, as illustrated by many of the cases above cited; or that the indorsement was obtained by fraudulent representations which were relied on by the indorser and which, if liability were enforced, would operate as a fraud on him. Ibid. § 722; Norton, Bills & Notes (4th ed.) p. 159. A valuable note on the subject showing the conflict in the authorities will be found in 4 A. L. R. 764.
In the present case the proof, both oral and written, shows beyond doubt that when the indorsement was made the
At the time of the indorsement the transaction between him and the bank had been fully settled. Although the note and mortgage were made payable to the bank, Wirt Monroe was the equitable owner and entitled to the delivery of the documents which had been procured for him at his request. The fact that by some inadvertence the words “without recourse” were omitted from the indorsement does not change the real nature of the transaction by which the legal title was transferred to him. There was no consideration for the indorsement, and if he had brought suit upon it against the bank it would have been an unconscionable claim.
We are now confronted by the question whether plaintiff Lyle Monroe, as a subsequent indorsee, is entitled to recover. The court properly held that, since the note in question was overdue when the plaintiff received it, he was not a holder in due course. In the briefs there is much able discussion and many authorities are cited as to the effect of the indorsement of overdue negotiable paper.
It is argued by counsel for plaintiff that indorsement after maturity does not change the character of the original contract as to the negotiability or effect; that when an instrument is negotiable in its origin it continues to be negotiable until it has been restrictively indorsed or discharged by payment or otherwise; that the indorsing of a note to order after due is the making of a new note and the indorser is liable.
It is further argued that the only effect of a transfer after maturity is to subject the indorsee to all defenses existing between the original parties, and between himself and his immediate indorser to the paper at the time of the transfer.
■ In one line of decisions it is held that an indorsee of overdue paper takes it subject to all defenses which might have been raised against his immediate assignor and against any prior holder. In others it is held as claimed by plaintiff’s counsel, that the indorsee takes it subject only to such defenses as attach to the note or bill itself, and not to claims arising out of collateral matters or independent transactions, whether they arise against the payee or an intermediate holder. The authorities on this subject are collected and discussed in an elaborate note in 46 L. R. A. 753.
In view of the conclusion we have reached on another branch of the case a decision on this subject becomes unnecessary. Concerning his transfer of the note to plaintiff Wirt Monroe testified:
“I told him that I signed the note with Ben Sumner- to the Patch Grove State Bank and he did not pay it, and that the bank obtained a note and mortgage from Ben Sumner and assigned it to me. I certainly told him the facts in regard to this as they really were. I explained to him in detail how I got the note and mortgage.”
This testimony was not denied by plaintiff. He testified that he knew that Wirt Monroe had signed two notes and that he had told the bank that he would pay the notes when he got the mortgage and the note in suit, tie testified further:
“He said he told them that if they would get a second mortgage and note upon that land up' there he would straighten up with them on these notes that he had signed with Ben Sumner.”
Before taking the note plaintiff went to another bank for advice and also to an attorney, but it does not appear that
The fact that plaintiff took the note when it was dishonored made it manifest that he was not taking it in the ordinary course of business; and since the facts were then actually brought to his knowledge as to the details of the transaction between the bank and his indorser, he had no better right than his assignor. On this subject there is no conflict in the authorities, and any other rule would be obviously unjust.
Since we hold that on the facts proven plaintiff had actual knowledge of the facts constituting a defense as between the bank and Wirt Monroe, it is unnecessary to discuss, the question on whom rested the burden of proof and the further question whether plaintiff paid value for the note, although on this latter point the evidence for the plaintiff is far from convincing. It is our conclusion that the motion to dismiss the complaint shbuld have been granted.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the plaintiff’s complaint.
