78 Wis. 113 | Wis. | 1890
It is conceded that, at the time of the execution of the $1,200 note and mortgage, the plaintiff did not know the aggregate amount of his indebtedness to the bank, nor the aggregate amount of. notes and claims held by the bank for collection against him. The cashier testified, in effect, that the plaintiff at first requested a loan of $1,000 with which to pay up such indebtedness and all of such notes and claims; that he thereupon, in the presence of the plaintiff, ran over the notes and claims constituting such indebtedness, and also the notes and claims so held for collection, and then informed the plaintiff that $1,000 would not be enough to pay his debts, and that it would be necessary for him to have $1,200; that the plaintiff, relying upon such statement, thereupon executed that note and mortgage. There is no pretense that any of the notes and claims so owned and so held by the bank were at that time delivered to the plaintiff, nor that he was at that time informed of the precise aggregate amount of them.
The cashier concedes, in effect, that the indebtedness so paid by the giving of that note and mortgage included a note executed by the plaintiff September 2,1886, wherein and whereby the plaintiff, for value received, promised to pay, on ox before January 2, 1881, to Christ. Thompson, or order, $355, with interest from date until paid at the rate of ten per cent, payable annually, and containing an agreement to pay the expenses of collecting the same, in-
The court instructed the jury to the effect that the only material difference between the parties was as to whether that note should or should not have been included; that from the testimony it clearly appeared that the plaintiff did not owe anything upon the note, and that the same did not constitute any indebtedness against the plaintiff; that the note did not come into the possession of the defendant until after it became due, and hence the bank acquired no more right to collect the same than the payee; that the clause of the note whereby the maker agreed to pay the expense of collection, including reasonable attorney’s fees, rendered it non-negotiable, and hence no more enforceable by the defendant than the payee. These several statements in the charge are each excepted to, but they are clearly supported by the undisputed evidence and the law applicable. That the clause in the note agreeing to pay attorney’s fees rendered it non-negotiable was expressly held in First Nat. Bank v. Larsen, 60 Wis. 206; Continental Nat. Bank v. McG-eoch, 73 Wis. 332.
At the request of the defendant, the court charged the jury, respecting the same note, to the effect that presumptively it was given for a valuable consideration, and that the defendant paid the full value thereof, and that it was intended to be paid by the note and mortgage given June 23, 1888. In view of the undisputed evidence, it may be doubtful whether the jury should have been authorized to indulge in any such presumption. At the request of the defendant, the court also charged the jury to the effect that if they found that the $355 note was given without consideration, and that the same was, with the knowledge of the plaintiff, embraced in the indebtedness which was to be
There are no available exceptions to any portion of the charge. Exceptions are taken to the refusal of the court to give fourteen several instructions, each elaborately drawn with reference to some phase of the case or the testimony. It would serve no purpose to go over all these instructions in detail. Several of them are mere statements of different phases of the case, and are sufficiently covered by the general charge. Some of them are inapplicable. Some of them would have been misleading if given. Some of them are upon mere abstract propositions of law, and some in relation to the mere weight of evidence.
Among the instructions rejected is one to the effect that the action was for money had and received, in the sum of $419.20, with interest from June 23, 1888. The general charge, in effect, so treated the case throughout. At the beginning of the trial, the defendant’s counsel asked the
Exception is taken because the plaintiff’s wife was allowed to testify as a witness. But we think she acted as agent in' the matters to which she testified, and that she was therefore competent. Besides, such testimony was so remote from the only issue submitted to the jury that it probably had no effect in the determination of the verdict. There was certainly no error in allowing the plaintiff to show the complete history of the Christ. Thompson note under which the defendant claimed.
By the Oov/tt.— The judgment of the circuit court is affirmed.