Milwaukee Nat. Bank v. Gallun

• Decision Date: 16 December 1902
• Citation: 92 N.W. 567,116 Wis. 74
• Parties: MILWAUKEE NAT. BANK v. GALLUN ET UX.
• Court: Wisconsin Supreme Court

116 Wis. 74

92 N.W. 567

MILWAUKEE NAT. BANK

v.GALLUN ET UX.

Supreme Court of Wisconsin.

Dec. 16, 1902.

Appeal from circuit court, Milwaukee county; Lawrence W. Halsey, Judge.

Action by the Milwaukee National Bank against Frederick Gallun and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

On September 20, 1898, and for some years theretofore, the respondent Frederick Gallun was a hardware merchant in Milwaukee, and a regular depositing and borrowing customer of the appellant, although his borrowing had not exceeded $600 at any one time. On that day he applied for a loan of $800, which was accorded him, his note at four months taken therefor, and the amount carried to the credit of his general account, which already contained between $2,400 and $2,500. On the same day defendant drew and had certified a check of $3,180, which nearly, but not quite, exhausted his deposit account, and paid the same to the Northwestern Mutual Life Insurance Company in satisfaction of a $3,000 mortgage theretofore existing upon his homestead in the city of Milwaukee. The plaintiff claims that the loan of $800 was made expressly for the purpose of being used to take up this mortgage, and upon a promise that at any time when requested respondent would secure the same by a mortgage on the same premises. Both of these assertions are denied by the defendant as a witness, and by his son, who claims to have been present at the transaction. Thereafter the $800 was renewed from time to time, and on three occasions further amounts were borrowed, which in each case were added to the preceding indebtedness, and a new note given for the whole, until it reached the sum of $1,500 on March 17, 1900, when a note for that amount was given, and was renewed on June 15, 1900. At the maturity of that note--October 15th--respondent asked 10 days' additional delay, and about the 20th of October, 1900, filed his petition in bankruptcy, and on October 25th was adjudged bankrupt, and on December 20, 1900, discharged from his debts. Thereafter appellant, not having proved its debt in bankruptcy, commenced this action, alleging the loan of the original $800 to be used towards paying off this mortgage, and of other sums towards paying taxes on the land, and an agreement by respondent to secure same by mortgage; and praying that the release of the insurance company's mortgage be set aside and vacated, and the same be declared a valid and subsisting lien in plaintiff's favor for the said sum of $1,500 and interest, and for subrogation of the plaintiff for said sum of $800 and the additional loans, and that the mortgage be foreclosed for said sums; also praying that the defendants, Frederick Gallun and his wife, be compelled to...