Northern Minnesota Dairy Farm Land Co. v. Haswell, 177 Wis. 635

Northern Minnesota Dairy Farm Land Co. v. Haswell

177 Wis. 635 | Wis. | 1922

Lead Opinion

Crownhart, J.

The agreement made between the parties, as found by the court, was not an agreement to cancel a debt, but was simply part payment and extension of time for the balance, with the substitution of a negotiable promissory note in place of the judgment. Part payment of a debt and the substitution of one form of evidence thereof for another, or the canceling of one evidence of debt and the taking of a new evidence of debt and extension of time for payment, is a common, every-day commercial transaction, based on sufficient consideration.

The executive officers, of a corporation are presumed to have authority to carry on its ordinary business. In this case the corporation received the new evidence of debt and the part payment and retained the same for several years. Whether or not the officers had original authority, it is perfectly plain that their acts were ratified, and the corporation cannot now be heard to say that they did not have authority.

*637The plaintiff contends that there was no agreement as claimed by the defendant, but the finding of the court is based upon sufficient credible evidence, and for that reason it cannot be disturbed by this court.

By the Court. — The order of the circuit court is affirmed.

Dissenting Opinion

Eschweiler, J.

{dissenting). In this case no question is raised but that defendant was legally and honestly indebted to the plaintiff at the time of the giving of the judgment note. Judgment thereon was entered May 16, 1917. While the execution was still outstanding, defendant' on June 11th paid $100 and gave his note for $1,022.48, which was the exact balance then due except for the costs. The same collateral that had been standing as security for the judgment note was continued and no other or additional security Igiven, and the second note fell due June 2, 1918, and no part thereof has been paid.

The transaction in which the $100 was paid and the new note given, was not an accord and satisfaction and could not be treated as a payment or release of the original obligation. It was a part payment on a past-due money obligation and could supply no consideration for a release of the original obligation except as to the $100 paid. Weidner v. Standard L. & A. Ins. Co. 130 Wis. 10, 15, 110 N. W. 246.

The defendant claimed to have an agreement whereby the judgment then outstanding against him is to be released and discharged, but then takes no steps whatsoever to have the same done and allows the matter to rest for four years after the agreement and three years after he had failed to make good his promise to pay. He now makes the vague allegation that'he has, and is advised that he has, a good defense at law to this second note, but fails to disclose what such possible defense can be. It can hardly be as to the first note, because he recognized its validity in the giving of the new; hardly as to the new, because he must rely upon its validity as consideration for the relief he now asks. In the same *638action in which the jttdgment was entered against him he now asks for equitable relief against such judgment. It does not alter the essential nature of the relief sought that he predicates it upon an alleged agreement that such judgment, should be satisfied and discharged. In substance and effect it is but asking a court of equity to relieve a judgment debtor from a lawful judgment entered against him when such debtor makes no attempt to pay his honest past-due and subsisting debt. When he obtained the promise, if such he did obtain, for a release of the judgment by the payment of $100 and the giving of the note, the consideration for any such agreement was certainly not the mere signing of a piece of paper by the defendant, but it was his promise to pay at the time therein specified the amount therein mentioned. There is a total failure of consideration on his part by his failure to pay or offer to pay this obligation. For that reason alone I think he should have been denied relief.

He has come into a court of equity for equitable relief, and seeking equity he should do equity, namely, pay his honest obligation. St. Croix T. Co. v. Joseph, 142 Wis. 55, 62, 124 N. W. 1049; 10 Ruling Case Law, 392; 21 Corp. Jur. 172.

He has slumbered on his rights. The relief he now seeks he was entitled to, if at all, in June, 1917. He failed to obtain such satisfaction or to see that the same was made on the record, and has allowed the situation to so rest and then defaulted in his renewed promise to pay. He has failed, therefore, in the diligence which a court of equity should require under such circumstances and should be denied relief on that ground. 10 Ruling Case Law, 385, 395; 15 Ruling Case Law, 745; 21 Corp. Jur. 193; McDonald v. Markesan C. Co. 142 Wis. 251, 258, 125 N. W. 444.