131 Wis. 379 | Wis. | 1907
Tbis is an action for a balance of $350 and interest alleged to be due upon a promissory note of $750 executed by tbe defendants November 27, 1903, to one Jones,' and alleged to have been transferred to tbe plaintiff for value before due. Tbe defendants by their answer alleged that tbe note was given in part payment of tbe purchase price of a
We are satisfied that the ruling of the trial court was erroneous for two reasons: Eirst. The answer alleged that the purchase of the stallion and the giving of the note were induced by false and fraudulent representations of soundness, by reason of which the defendants were damaged in the sum of
It is first argued by the respondent that the act named is unconstitutional and has been so held by this court in the case of J. H. Clark Co. v. Rice, 127 Wis. 451, 108 N. W. 231. It is true that in that case this court considered the statute named, so far as it concerned notes given for patent rights, and held it void because it invaded the federal statute governing
But it is further claimed by respondent that even if the act be held valid its only effect upon notes is to render those which have the required words upon them nonnegotiable, and hence that notes given in violation of the law'without the words upon them remain negotiable instruments as before. This contention is very clearly untenable. A note given for a stallion, which does not have the required words on its face, is a note given in direct violation of positive law. The giving or receiving of such a note is prohibited by law under a penalty. Hence a note so given is void because the giving of it is an illegal act, just as a contract made upon Sunday is held void because it is the transaction of business upon Sunday in violation of law. Whether the maker of such a note which has passed into the hands of an innocent purchaser before due would be estopped from setting up the illegality of the transaction, as was held with regard to a note executed on Sunday but dated on a secular day (Knox v. Clifford, 38 Wis. 651), is not necessary to be considered, as the answer alleges that the plaintiff knew when he received the note that it was given in part payment for a stallion.
By the Court. — Judgment reversed, and action remanded for a new trial.