88 N.W. 458 | N.D. | 1901
Plaintiffs, for cause of action, allege that on May 5, 1893, the defendants executed and delivered their promissory note, dated on that day, wherein, for value received, they promised to pay one E. Cooper, or order, $700, on October 1, 1894, $700 on Oceober 1, 1895, and $600 on October 1, 1896, with interest at the rate of 8 per cent, per annum until paid, payable annually; and 'that plaintiff is indorsee in due course of said note; and that the same has not been paid. The defendants, who are ten in number, answer jointly. Broadly stated, their defense is that they did not execute the note sued upon. The answer admits the genuineness of their signatures, but alleges a fraudulent and material alteration of the instrument to which such signatures were originally attached, and a total want of consideration. The trial was to the court without a jury, under § 5630, Rev. Codes, 1.899. Judgment was ordered and entered for defendants. Plaintiff has appealed from the judgment, and in a statement of case settled under said section has specified for retrial by this court the eighteenth finding of fact made by the trial court, which finding is that “the defendants in. signing said paper in the manner and form in which it was presented to them, were not guilty of negligence.” All other findings of fact are conceded to be correct.
The following facts material to a determination of the questions presented by this appeal are established b)1' the findings which are unchallenged: On or about May 5, 1893, one R. A. Whitehead had a number of imported stallions at Carrington, in Wells county. The stallions were owned by E. Coo'per who was a breeder and importer of blooded stallions, residing near Adrian, Minn. Whitehead, who was Cooper’s agent to sell said stallions solicited these defendants, who were farmers residing in the vicinity of Car
Stock Contract.
We, the undersigned stockholders, realizing- the necessity of improving our horses, do hereby associate ourselves together to buy of E. Cooper the imported ’............ stallion ............ No...................... Said ......................... is guarantied to be a. breeder. Certificate of registry to accompany .the horse. Capital Stock,
$2,000.00. May 5, 1893.
For value received we, or either of us, promise to pay to......, •or order,......dollars on the first day of......, 189.., and...... dollars on the first day of......, 189.., and......dollars on the first day óf......189.., Bank of........, with interest at...... per cent, per annum from date until paid, payable annually.
Here followed the signatures of the defendants.
That portion of the contract above set out down to the words "Capital Stock,” and including the same, was upon the upper page, and the rest was upon the lower page. Between the pages, and close under the bound portion of the book, were perforations, by which the lower page could be detached. This book was presented
May, 5, 1893.
For value received, we, or either of us, promise to pay to E. Cooper, or order, seven hundred dollars on the first day of October, 1894, and seven hundred dollars on the first day of October, 1895, and six hundred dollars on the first day of October, 1890, at New Rockford, N. D., Bank of New Rockford, with interest at eight per cent, per annum from date until paid, payable annually.
The words and figures in italics were filled in by Whitehead. The stock company was not formed, and no horse was purchased by the defendants. Whitehead, however, after detaching the lower page, and filling out the blanks, sent the pretended note to E. Cooper, his principal. On or about June 1, 1893, Cooper indorsed the note in suit to plaintiff as collateral security to a debt which he then owed it, and received back from plaintiff other collateral security. The amount of Cooper’s indebtedness to the plaintiff was then and is now in excess of the amount of. the note here in suit.
It further appears from the findings that no part of the note in suit has been paid; that plaintiff parted with value for said note in the due and regular 'course of business, before maturity, and in good faith, without notice of any defects in the execution of said paper, or of the fact that a portion of it had been filled out after it had been executed by the defendants fi> said E. Cooper, or that any paper or writing had been attached to said paper, or was in the same book with it, or of any other matter or thing which would provoke inquiry as to the defense now set up by the defendants.
The question of the defendants’ negligence in signing the document, which was afterwards converted into' the note in suit, — and that is the only question relied upon by appellant, — is to be determined upon the facts hereinbefore set out. The trial court found, both as a matter of fact and as a conclusion of law, that the defendants were not guilty of negligence. It appears from the facts already stated that the note in suit is without consideraion, and that it has been materially altered, and is not the instrument originally signed by the defendants. It goes without saying that, as between the original parties, a recovery could not be had. The defense now interposed would necessarily be sustained. What is the position of the plaintiff, who concededly is a purchaser of the note in
We may now inquire whether, upon the facts in this case, the ■defendants are liable upon the note in suit under the doctrine of implied authority or estoppel by negligence. We are agreed that they are not liable. It certainly cannot be claimed that the plaintiff has any right of recovery upon the note sued upon which depends upon the doctrine of implied authority. The instrument sued upon is a negotiable promissory note. The instrument signed by the defendants was not a negotiable note in form, with unfilled blanks, but, on the contrary, was a stock contract, in which the signers agreed to associate themselves together to buy a horse. Applying the doctrine of implied authority to the instrument signed ~by the defendants, it is apparent that it would extend only to filling the blanks in the instrument according to the purport and effect of the contract as contained within its four corners. Had all of the blanks been filled, it would still be a contract, nonnegotiable and conditional, and the promises to pay therein contained would be unenforceable save upon the condition of an actual association being formed and an actual purchase of a stallion. The instrument
The judgment of the district court is affirmed.