45 Wis. 373 | Wis. | 1878
Lead Opinion
We cannot agree with the court below; that the alteration of the promissory note, if made, would be immaterial. A. note payable to bearer is essentially a different contract from a note payable to order.
The court below found that the alteration was made by a trespasser, against the will of the respondent. There is certainly no such preponderance of evidence against the finding, as would warrant us in disturbing it. And this finding of fact would have supported a conclusion of law, that the note was not altered; that it remained as written, as much as if it had been merely obscured by an accidental blot of ink. It wan
The most serious difficulty in the case is the mistake of the complaint in not pleading the note as originally written. This might have been taken for adoption or ratification of the alteration. But, on reflection, we cannot think that we would be justified in coming to such a conclusion. As a variance, founded on mistake, it was amendable on trial, and must be considered amended. We have the less difficulty in so holding, because the identity of the note as made is fully established by the findings of the court below.
The very able and learned counsel of the appellants criticised the findings with great astuteness. But, though there is some inaccuracy of language in them, there is nothing in the record to warrant this court in disturbing them, or the judgment going upon them.
By the Court. ■ — -The judgment of the court below is affirmed.
A rehearing having been granted, the appeal was finally disposed of at the August term, 1878.
Rehearing
A rehearing of this appeal was granted on the question of the amount which the respondent was entitled to recover.
The learned counsel of the appellants took the position that, because the respondent held the note in suit as collateral security for a note of the payee of much less amount, and because the record disclosed defenses to the note as against the payee, the respondent’s recovery should be limited to the amount for which the note of the appellants was collateral.
The general rule is, that a plaintiff recovering- on an instrument held as collateral is entitled to recover the entire amount. Hilton v. Waring, 7 Wis., 492; Plant’s M. Co. v. Falvey, 20 id., 200; N. W. M. L. Ins. Co. v. G. F. Ins. Co., 40 id., 446. It is true that Dixon, C. J., throws some doubt on the rule in Kinney v. Kruse, 28 Wis., 183; and there are cases elsewhere in conflict with it. But the rule has been established in this
The question here is, therefore, whether the evidence in this case discloses a defense against the payee of tbe note.
Tbe defenses here set up are, that tbe note was altered by tbe agent of tbe payee, and- that it was originally made by a partner of the appellants, now deceased, to pay bis individual debt. Tbe learned judge of tbe court below found that the alteration was made without tbe knowledge, consent or permission of tbe payee; and that tbe note was given for the price of chattels appertaining to tbe business of tbe partnership, purchased by tbe partner giving it ostensibly for the use of tbe partnership.
All the evidence bearing on these questions has been considered; and tbe preponderance of evidence appears to be in favor of tbe findings; certainly not against them. This court
The note in question was counted on as payable to RTcDon--ald or bearer. And on the argument of the first hearing, the alteration was discussed by counsel on both sides as one changing the note from order to bearer. The former opinion so treats it. This appears to have been inaccurate in terms, though possibly the alteration had the effect of making the note payable to bearer. On that no opinion is now expressed; but it is deemed proper to note the inaccuracy.
By the Gowrt. —The judgment of the court below is affirmed.