Black v. Tarbell

• Citation: 89 Wis. 390,61 N.W. 1106
• Parties: BLACK v. TARBELL.
• Decision Date: 05 February 1895
• Court: Wisconsin Supreme Court

89 Wis. 390

61 N.W. 1106

BLACK

v.TARBELL.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by John Black against Gage E. Tarbell. From a judgment for plaintiff, defendant appeals. Affirmed.

Action on a promissory note. The facts are that on the 28th or 29th of December, 1892, the plaintiff indorsed for accommodation a $10,000 note of Lappen & Co., maturing January 14, 1893. This note was discounted by Lappen & Co. at the bank, and on the day before it fell due, Lappen & Co. not being able to pay it, Black indorsed a renewal note for $10,000, due in two months, receiving at the same time, as collateral to this indorsement, the note in suit. The note in suit is an accommodation note, executed by defendant, Tarbell, to Lappen & Co., December 28, 1892, for $5,000, due 60 days after its date. The renewal note, which Black had indorsed, was taken by Lappen & Co. to the bank, and used to take up the note first above described. On March 16, 1893, when the renewal note of January 13th fell due, Lappen & Co. could not pay it; and the plaintiff indorsed another renewal note for $10,000, due in two months, which was used to take up the note of January 13th at the bank. Black retained the note in suit, with certain other securities, as collateral. Lappen & Co. failed May 12, 1893, and the plaintiff was compelled to and did take up and pay the $10,000 note, which he indorsed March 16, 1893, and has received no reimbursement therefor. He brings this action to recover of Tarbell, upon Tarbell's accommodation note, so held by him as collateral. Trial by jury was waived, and the action tried by the court. The court made findings containing the foregoing facts, among others not necessary to be stated. From judgment for the plaintiff, the defendant appeals.Winkler, Flanders, Smith, Bottum & Vilas and A. N. McGeogle, for appellant.

Rietbrock & Halsey and Fiebing & Killilea, for respondent.

WINSLOW, J. (after stating the facts).

The appellant contends that Black is not a bona fide holder, before due, of the note in suit; and, consequently, that there can be no recovery on it, because it is accommodation paper. He says, in brief, that, if it be held that the liability of Black as indorser upon the several notes which he indorsed is a continuous one, then such liability commenced December 28, 1892, when he indorsed the first note; and that, having received the note in suit January 13th, after his liability was fixed, he cannot be held a bona fide holder, as he neither advanced money nor incurred liability on the...