104 Wis. 564 | Wis. | 1899
1. It appearing that the consideration of the note sued on had failed, it was necessary to a recovery that plaintiff should prove that the bank received it in due course of business, before maturity, for value, and without notice of the defenses. Rand. Comm. Paper, § 538.
Prima facie proof of such holding might be made by the indorsement written on the note, but the time of that act is in much dispute. The original indorsement of the payee’s (Daly’s) name was in the handwriting of Trow, the cashier, and before trial had been canceled. The following indorsement in the hand of Daly himself was, “ without recourse.” Trow’s testimony threw much doubt on whether Daly was in California or in South Dakota in January, 1888, when it is claimed the note was first received into the bank; and at and until some time after the maturity of the note the plaintiff’s conduct was consistent only with the understanding that Daly was liable to the bank, as he would be under the first indorsement, but would not be under the one without recourse. The note was protested when due,— a ceremony needless if indorsed without recourse. It was thereafter directed to be sued in Daly’s name, and expenses thereof were charged to him. Notwithstanding the testimony of Trow that he thought the indorsement was written by Daly in the bank in January, 1888, rendered doubtful by uncertainty of recollection and some contradiction, such conduct on plaintiff’s part was sufficient to raise a question for the jury as to whether the indorsement relied on (that in Daly’s handwriting) was made before maturity, or at some time thereafter,; when the difficulties in the way of recovery in Daly’s name >
From the foregoing it is apparent that the lona fides and the time of commencement of the bank’s ownership of the note should have been submitted to the jury, and that direction of a verdict for plaintiff was error.
2. Respondent calls attention to the fact that each party moved the court to direct a verdict in his favor, and urges that we should adopt and enforce the rule long recognized by the New York courts, that such motions will be construed as an admission or agreement that there is no issue of fact, or as a waiver of the right to have the facts passed on by the jury, and a submission thereof to the court. This rule has been followed in North Dakota, but in no other state, so far as we discover. It has been recognized in the United States courts in cases tried in New York.
The question, though never expressly decided in Wisconsin, was present in Sabotta v. St. Paul F. & M. Ins. Co. 54 Wis. 687; Calder v. Crowley, 74 Wis. 157; Plankinton v. Gorman, 93 Wis. 560; and Richter v. Leiby's Estate, 101 Wis. 434,-was urged by counsel in all except the first, and in all the New York rule was impliedly repudiated by reversing the judgments and ordering new trials, while in Calder v. Crowley it was said (LyoN, J.) the court would be slow to hold that the right to have questions passed on by the jury would be waived by a motion to direct a verdict.
These considerations are especially cogent in Wisconsin, where through half a century of practice the motion to direct a verdict has never been held to have any such force as is given to it in New York. With us, certainly, the counsel who makes such a motion cannot rationally be presumed to have intended such result. Through all those years judgments upon verdicts directed by the court have come before this court, many of them where both parties had moved for a directed verdict, with no intimation by this court that such a motion, whether made by one or both parties, surrendered to the court the jury function, or admitted nonexistence of any issue of fact. In all such cases the question has always been declared to be, not whether there was any evidence to support the verdict directed, but whether there was any evidence to support a contrary verdict. Cutler v. Hurlbut, 29 Wis. 152, 165; Lawrence University v. Smith, 32 Wis. 592; Spensley v. Lancashire Ins. Co. 54 Wis. 433; Sabotta v. St. Paul F. & M. Ins. Co. 54 Wis. 687, 689; Lewis
In tbe light of such long-continued practice, it would be perversive of the understanding upon which counsel ordinarily make such motions, and of the understanding upon which trial courts consider and decide them, to now apply 'the New York doctrine expost facto. We adhere to the rule, •so often stated, that before directing ,a verdict “ the court must look at all the facts in the most favorable light for the •other party in which the jury would be at liberty to find them, and then be able to say there is no evidence which would justify a verdict in his favor.” Dixon, O. J., in Lawrence University v. Smith, supra. Omission of this duty is error, which may be reviewed on appeal.
• By the Court.— Judgment reversed, and cause remanded for a new trial.