Andrews v. Robertson

• Decision Date: 24 September 1901
• Parties: ANDREWS ET AL. v. ROBERTSON.
• Court: Wisconsin Supreme Court

111 Wis. 334

87 N.W. 190

ANDREWS ET AL.

v.ROBERTSON.

Supreme Court of Wisconsin.

Sept. 24, 1901.

Syllabus by the Court.

1. Parol evidence is proper to explain the meaning of words used in a writing, which are ambiguous when applied to the subject which gave rise to such paper, as well as when the meaning of the writing is uncertain looking only at the language thereof.

2. A person is conclusively presumed to have had notice, actual or constructive, of all the doings of his agent within the actual or apparent scope of the agency, and to be bound thereby.

3. The holder of a promissory note, taken for him of the maker by an agent upon a condition not disclosed to such holder and outside the scope of the agency, cannot repudiate the condition and insist upon holding and enforcing the note. He is bound, if he does not intend to abide by such condition, to restore or offer to restore the note within a reasonable time after discovering the facts.

4. The general rule is that if a person, with knowledge of facts which will defeat a promis sory note in the hands of the payee, purchases it from a bona fide holder thereof, he may recover thereon upon the strength of such bona fides; but that rule does not apply to a purchaser who is the payee of the note. If he sells such paper to an innocent third person and repurchases it for value, he does not thereby become possessed of any better right as against the maker than he possessed in the first instance.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Edward S. Andrews and others against D. H. Robertson. Judgment for defendant, and plaintiffs appeal. Affirmed.

Action on a promissory note. The defense was that plaintiffs as agents of the Equitable Life Assurance Society of the United States, acting through their subagent, one Forsting, delivered to defendant two insurance bonds duly issued by such society, on his application made through such agents, and that he at the same time delivered to Forsting for the agents the note in suit, the same being for the down payment for such bonds, and that the delivery was coupled with an agreement which Forsting had authority to make to the effect that defendant might, at his election to be made within 30 days, return the bonds, and in that event that the note should be delivered to defendant; that such election was made, notice thereof given to plaintiffs, a demand made upon them for the note and a tender of the bonds made to them, all within the 30 days agreed upon. The evidence was to the effect that defendant dealt with Forsting believing him to be the authorized agent of plaintiffs, received from him the bonds mentioned in the answer, and delivered to him the note in suit, receiving at the same time a writing signed by Forsting as follows: “Received of D. H. Robertson note for $600 balance due on bonds Nos. B836,811 and 851,882. It is understood and agreed that should the above-numbered bonds be returned not accepted within thirty days duebill will be returned to D. H. Robertson.” Forsting was in fact the duly-authorized agent of plaintiffs to deliver to defendant the bonds mentioned and receive payment therefor. Evidence was given under objection that the word “duebill” in the receipt referred to the note in question. Evidence was excluded as to the authority of Forsting being limited to delivering the bonds and receiving payment therefor in cash. Proof was made that defendant did all that was necessary on his part to entitle him to a return of his note if the writing was binding on plaintiffs, and that plaintiffs did not know of the agreement between Forsting and defendant mentioned in the receipt until after they parted with the note as hereafter mentioned; that they received the note supposing the delivery thereof to Forsting for them was unconditional, and that upon the faith thereof they paid full value for the same to the assurance society, keeping the paper as their own property; that they thereafter parted with the note for value, but discovering defendant's attitude in respect thereto before the maturity thereof, they repurchased the paper so as to enforce it in their own names and preserve their credit; that defendant knew when he gave the note that it was negotiable and was payable to plaintiffs as principals; also that the bond, according to the contract between him and the assurance society, required payment in cash.

A verdict was rendered in favor of defendant and judgment was rendered...