Aukland v. Arnold

• Decision Date: 19 March 1907
• Citation: 131 Wis. 64,111 N.W. 212
• Parties: AUKLAND v. ARNOLD ET AL.
• Court: Wisconsin Supreme Court

131 Wis. 64

111 N.W. 212

AUKLAND

v.ARNOLD ET AL.

Supreme Court of Wisconsin.

March 19, 1907.

Appeal from Circuit Court, Ashland County; John K. Parish, Judge.

Action by William Aukland against Joseph Arnold and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

An action on a joint and several promissory note for $933.34, dated April 14, 1903, payable two years after date to the order of W. S. Gilmore & Co., signed by all of the defendants. Before the maturity of the note, it was negotiated for value by W. S. Gilmore & Co. to the plaintiff. All the defendants except two appeared and answered. They allege that their signatures were obtained by fraudulent representations of Gilmore & Co.'s agent as to the nature of the papers signed, alleging that they were deceived and fraudulently led to believe that they were signing a paper, stated to be a guaranty, instead of a note, as now claimed and asserted by plaintiff. The defendants allege that they had agreed with Gilmore & Co. to purchase from them a stallion, at the agreed price of $2,800 to be paid for upon the terms and in the manner following: The horse was to be kept by Gilmore & Co. in the immediate vicinity, and put into the field for service in the community, and the money collected for the services of the horse was to be applied each year in payment of the purchase price, up to an amount not exceeding one-third of the purchase price. In case the amounts collected for the services of the horse in any one year did not equal the one-third part of the purchase price, such unpaid portion was to be paid out of the money received for such services thereafter. In case the sum realized during any of the first three years exceeded one-third of such purchase price and any unpaid portion due, then defendants were to receive such excess. Defendants further claim that they were to sign an “agreement,” called a “guaranty,” by which they were to obligate themselves to pay any balance due on the purchase price, should the horse die, before full payment of the purchase price, on account of the neglect or fault of the defendants. They further allege that the agents of Gilmore & Co. falsely and fraudulently represented to them that the three papers presented to them for signature were such “guaranty” contracts; whereas, in truth and fact, as they now learn, such papers were three promissory notes, on one of which this action is brought, and that they each relied upon the false representations, believing them to be true, and for that reason signed the notes without knowing their character and nature, and without any want of ordinary care to learn their nature and character. The case was submitted to a jury, and a special verdict was returned, to the effect that the plaintiff became the owner of the note sued on for value and in good faith, and that he had no knowledge at the time of purchase of such facts as amounted to bad faith. The jury found specifically that Gilmore & Co., payees in the note, “for the purpose of inducing defendants to sign the same, knowingly, falsely, and fraudulently represented to said defendants that it was a writing different in character and nature from a promissory note,” and further found that defendants could not by the use of ordinary care have obtained knowledge of its character and nature. Plaintiff moved for direction of a verdict, and that the answer to the question, finding that defendants were not able in the exercise of ordinary care to learn the character and nature of the instruments, be changed from “no” to “yes,” as to all of the defendants appearing, except the defendant Charles Zibuski, as to whom the plaintiff admits the answer to be supported by the evidence. This motion was denied, and upon the motion of the defendants the court ordered judgment in defendants' favor. This is an appeal from this judgment.Ben S. Smith (R. Sleight, of counsel), for appellant.

W. S. Smith and T. M. Holland, for respondents.

SIEBECKER, J. (after stating the facts).

The fact stands uncontradicted by the record, as above stated, that one of the signatures to the note sued on was...