Bowers v. Thomas

• Decision Date: 03 March 1885
• Citation: 22 N.W. 710,62 Wis. 480
• Court: Wisconsin Supreme Court
• Parties: BOWERS v. THOMAS, IMPLEADED, ETC.

62 Wis. 480

22 N.W. 710

BOWERS

v.THOMAS, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Appeal from county court, Dodge county.

F. Hamilton & Son, for respondent.

Charles A. Stark and Lauder & Lauder, for appellant.

TAYLOR, J.

This is an action to recover of the appellant the amount of a promissory note for $180, which it is alleged he executed on the eighth of April, 1878, payable to the respondent or order, one year after date, with interest at 10 per cent. The answer of the appellant puts in issue the execution of the note by him. On the trial the appellant, as a witness in his own behalf, testified “that he was a farmer; could not write his own name; cannot read or write English; that he did not, on the eighth day of April, 1878, or at any other time, sign a note for $180, with William Jones and Owen Jones, or with William Jones alone; that he never authorized any one to sign his name to a note for $180. It never was done at my request nor by my consent.” On his cross-examination he testified: “I signed a note for $100. The note I signed was read over to me by Owen F. Jones in English. I can understand English. I signed a note with William Jones years before the last one. I never signed more than two notes when William Jones' name was to them. The first one was for $100. That was years before this. I never had to pay it. I sign notes by making my mark. I am sixty-four years old; my health feeble for more than four years.”

The following is a copy of the note upon which the action was brought:

“RANDOLF, DODGE CO., WIS., April 8, 1878.

Twelve months after date, for value received, we promise to pay to John Bowers, or order, one hundred and eighty dollars, with interest at the rate of ten per cent. per annum after * * *, until paid; payable at Randolph, Dodge Co., Wis.

WILLIAM JONES.

WILLIAM X THOMAS.”

The evidence on the part of the plaintiff shows that the note was made for the benefit of Owen F. Jones, to whom it was delivered, and he sold it to Bowers, the plaintiff. William Jones is the father of Owen F. Jones, and in his evidence he attempts to explain why the name of Owen F. Jones was erased from the note. He says that Thomas, the appellant, refused to sign a note with his son, Owen F., but said he was willing to sign with him, William Jones. William Jones says Owen F. wrote his (William's) name to the note, his own name, and the name of the appellant, and that Thomas made his mark after his name was written by Owen F. This witness was 72 years old; says the note was for 8 per cent., and for $180; and that the note was read over to them by his son, Owen. Several witnesses testified on the trial that neither of the names of the makers of the note given in evidence was in the handwriting of Owen F. Jones. Owen F. Jones was not a witness on the trial of the action.

Upon this evidence the appellant, among other things, requested the learned county judge to give the jury the following instructions: “(1) If you shall find from the evidence that the defendant Thomas did authorize Jones to sign his name to the note in question, and that at the time he authorized the same to be signed, it was represented to him and he believed it was a note for $100, and that he was unable to read or write the English language, and that he was ignorant of the fact that the note had been drawn for $180, and that he had no intention of signing a note for that amount, and was guilty of no negligence in not knowing the exact amount of said note, then he is not bound by it, and is not liable thereon to any one. (2) If the signature of the defendant Thomas to the note in question was obtained upon a false representation as to the amount thereof, and the defendant signed it without knowing the amount, or under the belief that it was for the sum of $100, and was not guilty of any negligence in so signing them, he is entitled to a verdict in his favor. (3) If the signature of the defendant to the note was obtained by fraud as to the amount thereof, he believing it to be for the sum of $100, when in fact it was for $180, and the defendant was ignorant of that fact, and he had no intention of signing a note for $180, and was guilty of no negligence on his part, and he being ignorant of the true character of the note, and had no intention of signing a note for $180, then he is not liable therefor, and the note is void, even in the hands of a holder for value before maturity and without notice. (4) If you shall find that the note in question was misread to the defendant Thomas, and he signed it when he was told and believed that he was signing another and a different one in amount, and he was guilty of no negligence, your verdict must be for the defendant.”

The learned judge refused the instructions asked, and exceptions were duly taken. No equivalent instructions were given by the learned judge. He submitted the case to the jury as though the only question for them to determine was whether the appellant “signed or affixed his mark, or authorized Owen Jones to sign his name, to the note in question;” and he wholly ignored the question whether such signature was obtained by the fraudulent representations of Owen, and by his misreading it to him, and inducing him to sign it, believing it to be a note for $100 instead of a note for $180. The verdict of the jury upon the evidence clearly indicates that such must have been their understanding of the instructions of the court, as it seems to me that if they had been called upon to pass upon the questions asked to be submitted by the instructions requested by the appellant, the verdict would probably have been for the appellant.

I gather from the whole charge given, as well as from the argument of the learned counsel for the respondent made in this court, that the learned county judge probably declined to give the...