Wakem v. Schneider

192 Wis. 528 | Wis. | 1927

Eschweiler, J.

Because we are satisfied that under the testimony in this case the plaintiff was a holder in good faith of the trade acceptances and that there is not sufficient support for the jury’s answer in the negative to the second question of the special verdict, the plaintiff is entitled to judgment in his favor irrespective of whether or not the first question of the special verdict was properly answered.

Assuming that there was a defect in the title of the person who negotiated the instrument in question here and that the burden was therefore, under sec. 116.64, Stats., placed upon the plaintiff to prove that he was a holder in due course as defined in sec. 116.57, still the evidence permits no other warrantable conclusion than that plaintiff’s title was good. The plaintiff showed that he did all, as a purchaser of commercial paper, that, as a matter of law, was required.

That the form of commercial paper here involved and designated as trade acceptances are negotiable instruments and within and under the statutes concerning such, is not here questioned nor could it well be. McCornick & Co. v. Gem State Oil & P. Co. 38 Idaho, 470, 222 Pac. 286, 34 A. L. R. 867.

It is not claimed by respondents that there was any duty on the plaintiff to inquire as to the contract between the seller and the buyer of the goods for which such paper was given though such was mentioned on the face of the acceptances. If any such inquiry had been made it would have shown a legitimate contract. That the seller did not thereafter fully comply with the conditions required by the contract did not of course affect its validity at the time of its making.

The discount in the sale of these papers was not such as to create any constructive notice of possible infirmity of title or to place any duty on the plaintiff to make further examination. Tiefenthaler v. Biersach, 182 Wis. 245, 196 N. W. 211.

Importance is attached by respondents to the use by Johnson, who alone transacted all the business, of the name “Aristocrat Manufacturing & Distributing Company” in the various papers. It being conceded that there is no such incorporation, reliance is placed upon the Illinois statutes prohibiting, under penalty, the assuming a corporate name for the purpose of soliciting business, and which statute may be found with decisions thereon in 14 Corp. Jur. 333.

In Illinois decisions it has been held that the only penalty for doing business under an assumed corporate name is the one expressly provided for in this statute, and that such violation does not make void a contract made by an individual using a corporate name (Turnes v. Johnson, 179 Ill. App. 32; People ex rel. Power v. Rose, 219 Ill. 46, 63, 76 N. E. 42); and it was so held as to a promissory note in First Nat. Bank v. Cox, 140 Ill. App. 98, 102.

Sec. 343.722 (sec. 4470b, Stats., cited by respondents providing a penalty for the unlawful use of a corporate name with intent to obtain credit, such name not disclosing the real name or names of one' or more of the persons engaged in said business, without first filing in the office of the register of deeds of the county where the principal place of business may be the specified statement with reference to the same, can have no possible application to this case.

The plaintiff here having neither actual nor constructive notice of any infirmity of title or fraud in the original transaction, if either of such there were, was entitled, as a holder in due course, to judgment in his favor. First Nat. Bank v. Court, 183 Wis. 203, 213, 197 N. W. 798. There was here no such out-of-the-ordinary course of business or unusual transaction as was presented in the case relied upon by defendants of Union State Bank v. Savord, 186 Wis. 365, 202 N. W. 688.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff.