115 Wis. 289 | Wis. | 1902
It is entirely clear from the evidence in the case and from the findings of fact that the note and mortgage •in question were the property of the plaintiff corporation, and that no express authority had ever been given to Sears-to sell them. These being the facts, the defendant, Babler, could acquire no title to the note by his transaction with Sears-unless the note was negotiable paper, or unless Sears had either the apparent ownership or apparent authority to sell it, so that the corporation would be estopped to deny the act. It is quite certain that the note was not negotiable, because-by the power of attorney -which it contained judgment could be entered upon it at any time after its date; whether due or not. Thus the time of payment depends upon the whim or caprice of the holder, and is absolutely uncertain. This'deprives the note of its negotiability. Continental Nat. Bank v. McGeoch, 73 Wis. 332, 41 N. W. 409; W. W. Kimball Co. v. Mellon, 80 Wis. 133, 48 N. W. 1100. Ch. 356, Laws of 1899 (the negotiable instrument law), provides that the negotiable character of an instrument is not affected by a provision authorizing a confession of judgment if the- instrument;
Nor can it be said that Sears had such apparent ownership or authority to sell the note as would estop the plaintiff corporation from denying his act. The note, upon its face, shows that it was held by Sears in a representative capacity merely. Had it been payable to “the order of J. F. Sears, Treas.,” without further words, it might, perhaps, be claimed that the word “Treas.” was a word of description only; but the word “Treas.” is followed by the words “or his successor,” thus showing beyond cavil that Sears held it in a representative capacity only. Not only do these words seem entirely sufficient to indicate the representative character of Sears’s title, but the fact is that the accompanying mortgage named the obligee as “J. F. Sears, Ureas., or his successor in office, of the Wisconsin Yearly Meeting of Freewill Baptists ” and that the mortgage was present and open to inspection when the defendant made his purchase. These recitals were amply sufficient to put the defendant upon inquiry as to Sears’s title, especially when it appeared that he was expecting to pay for it in part by,a discharge of Sears’s private indebtedness. The defendant, however, made no inquiry. Had he made inquiry, he would doubtless have ascertained the exact facts as found by the court, namely, that the note and mortgage belonged to the plaintiff, and that the only 'authority of Seal’s was to safely keep the moneys and securities of the corporation. Had it been shown that Sears- was in the habit of selling and transferring the securities of the corporation with the express or implied consent of the trustees, or that the selling of securities was a part of the ordinary business of the corporation, and that such business had been placed in the hands of the treasurer, although without by-law or formal action, the corporation might, perhaps, be bound by the act of Sears; but no such state of facts was shown. Meating v.
By the Court. — Judgment affirmed.
