Prentiss v. Strand

116 Wis. 647 | Wis. | 1903

WiNsnow, J.

Tbe evidence leaves no doubt of tbe grossly fraudulent character of tbe operations of Fryer. By means thereof be succeeded in obtaining from tbe defendants apparent obligations aggregating $4,000 for tbe purchase of property not exceeding $2,000 in value. Indeed, tbe fraud is not controverted in this case, and tbe only questions really in •dispute were whether tbe plaintiff was entitled to protection as a bona fide bolder of commercial paper, and, if so, whether tbe defendants were guilty of negligence in signing that which was in reality a negotiable note, but which tbey supposed to be simply a contract to purchase a horse, and give their notes therefor. The first question suggested really drops out of the case upon this appeal for two reasons: (1) Recause the bona fides of both Valerius and the plaintiff in purchasing the note in suit was thoroughly proven without substantial contradiction, and (2) because the jury failed to negative the good faith of Valerius in his purchase. If Valerius purchased in good faith, and for value, before maturity, then the plaintiff, who purchased from him, is equally protected even though he may have had notice himself of defects. Montpelier S. B. & T. Co. v. School District, 115 Wis: 622, 92 N. W. 439. We proceed, therefore, 'to consider whether the verdict of the jury to the effect that the defendants exercised ordinary care in affixing their signatures to the paper was arrived at without prejudicial error. The first and most important contention made by the appellant is that there was error in the admission of evidence. This claim is based upon the admissions of the testimony of the defendants to the effect that they had subsequently paid the three notes which they admittedly signed for the purchase of the horse. This is said to be proof of another transaction, having no legal bearing upon the controversy, and naturally exceedingly prejudicial to the plaintiff. With this claim we cannot agree. The defense of the defendants was that the various transactions by which they were induced to sign the various papers were all integral parts of the same negotiation; that in the course of this one negotiation they agreed to form a company to buy the horse for $2,000, and to give their notes for the price; and that the various papers which they signed were intended to accomplish these agreements, and nothing more. Clearly, it was necessary for them to show all that was done at the time, and we can see no valid reason why it was not competent for them to show payment of the notes. This was, in effect, simply showing that they had fully performed and! discharged the agreement in fact made. Had they not shown •'that tbey gave and fully paid tbe note, tbe case would have stood simply upon tbe admitted fact that tbey bought tbe horse, agreed to pay $2,000 therefor, that tbey bad not paid it, and that tbe plaintiff was tbe owner of their agreement to pay in notes, with all tbe rights at least of an assignee of tbe contract. Tbe payment and discharge of tbe notes, thus extinguishing all liability to any one resulting from tbe transaction (provided tbey showed themselves free from negli/gence), was manifestly proper, if not necessary, to make their defense complete. Tbe facts were fully pleaded, and seem to ns to be entirely relevant and proper to complete tbe history of tbe transaction, upon a distorted part of which plaintiff founds bis right.

Tbe appellant also claims error in tbe admission of evi- ■ dence of tbe defendants to tbe effect that tbey laid tbe matter before tbe district attorney of tbe county, and that Eryer •finally admitted tbe fraud, and sent a man to settle with tbe defendants. Tbe supposed erroneous evidence came into tbe .case in tbe following manner: Upon cross-examination of L. K. Strand, tbe plaintiff proved by him that be signed a receipt acknowledging payment to him by Fryer July 6, 1892, ■of $102.50, with tbe statement that it was for services in assisting in tbe sale of tbe borse. This receipt was then put in evidence by tbe plaintiff. Upon re-examination tbe defendant’s counsel asked Mr. Strand to state tbe circumstances under which be signed tbe receipt, and be answered, against ■ objection for incompetency, that “it was an indorsement that this man [Fryer] bad beat us out of. I think it was a little •over $1,000. We were down to Galesville to tbe district at■torney, and bad him attend to it, and be wrote to him if be would not come back and pay that money.” This answer was ■objected to, and tbe court said that it was not an answer to the question, but no motion was made to strike it out. It is always competent to explain a mere receipt for money, so -■that there appears to be no serious ground of objection to tbe question asked. If the answer was not responsive, the plaintiff should have moved to strike it out. Probably the court would have done so had the motion been made. In the absence of such a motion, no error appears.

It is claimed that there was error resulting from the fact that question 4 and the following questions of the special verdict to the jury assume that the supposed note was in the same condition when all the defendants signed it, whereas in fact they all signed at different times and places, and they do not all testify that part of it was concealed in the binding of the book. In this connection it is said that the defendant Martin Walder a, who could not read, did not have the contract read to him by Eryer, nor even ask that it he read. The objection does not seem substantial. All of the defendants who can read English testify, in substance, that they took the book, and read the supposed contract, or looked over while Eryer was reading it; and they all testify to the condition of the book — as to the stiffness of the binding, and the fact that an inch of the leaf was thereby concealed, and that no perforation was visible. Some of them testify to this particularly, and some generally, by stating that its condition and appearance was identical with the description given by the defendant Moen, who testified positively and clearly to the fact. Most of the witnesses who could not read testify also to the appearance of the book being the same as described by Moen, and they all testify (including Waldera) in one form or another to the effect that there was no one present or accessible who could read English, and that Eryer read or explained its contents to them either upon request or without request, and that his explanation and reading was that it was a contract to form a company and purchase the horse, and that they believed him. As matter of fact, the form of the questions does not prevent the jury from excepting from an affirmative answer the three defendants whom appellant claims might have been found careless in signing. But, even if tbe fact were otherwise, careful reading of tbe testimony convinces us that tbe proof was simply overwhelming that, tbe book was in tbe same condition when all of tbe defendants signed, and that tbe attempted evidence in rebuttal is insufficient to shake this conclusion in tbe least, or authorize tbe jury to find any verdict to tbe contrary.

These considerations also dispose of tbe claim that tbe verdict is contrary to tbe evidence. On tbe whole ease we are satisfied that justice has been done without material error.

By the Court. — Judgment affirmed.