La Fayette Cnty. Monument Corp. v. Magoon

• Decision Date: 12 March 1889
• Citation: 42 N.W. 17,73 Wis. 627
• Parties: LA FAYETTE COUNTY MONUMENT CORP. v. MAGOON.
• Court: Wisconsin Supreme Court

73 Wis. 627

42 N.W. 17

LA FAYETTE COUNTY MONUMENT CORP.

v.MAGOON.

Supreme Court of Wisconsin.

March 12, 1889.

Appeal from circuit court, Grant county; GEORGE CLEMENTSON, Judge.

The action is upon an unpaid bank-check, which is as follows: “$1,000. Darlington, Wis., April 6, 1887. Citizens' National Bank: Pay to Joseph Blackstone, treasurer of the La. Co. M. Ass., one thousand dollars, and charge account. HENRY S. MAGOON.” On the back of the check was written: “Payable May 3, 1887. HENRY S. MAGOON.” The complaint alleges that when such check was given the plaintiff was and still is a duly-organized corporation under the laws of this state; that the check was given to the payee therein named as treasurer thereof; that the plaintiff is the holder and owner of the check; that payment thereof was demanded of said bank on May 3, 1887, and the bank refused to pay the same; and that the check was duly protested for non-payment May 4, 1887, and notice thereof forthwith given the defendant. On the trial of the cause the plaintiff proved by undisputed evidence all the above allegations of the complaint, and proved, further, that the check was given for and on account of the plaintiff, and that payment thereof was refused by the bank pursuant to directions given it by the defendant. When the plaintiff rested its case the defendant moved for a nonsuit, which motion was denied by the court.

The answer of defendant alleges generally want of consideration for the check in suit, and also payment thereof by the tender of a certain bond which the plaintiff agreed to receive as such payment. The answer then proceeds to allege an agreement by the plaintiff with the defendant to erect, at its own expense, a monument to the deceased soldiers and sailors of La Fayette county, whether of the war of the Rebellion, or the Revolutionary war, or the last war with Great Britain, or the Mexican or Black Hawk war, which monument should be suitable and beautiful, and appropriately inscribed, and should contain the names of such deceased soldiers and sailors; that the plaintiff further irrevocably agreed that such monument should stand in the center of the public square in Darlington, should cost not less than $6,000, should be completed by January 1, 1889, and that plaintiff should raise and have in its treasury on March 1, 1888, $6,000 in money for monument purposes, on or before said March 1, 1888. It is admitted in the answer that upon the faith of such agreement, and not otherwise, the defendant subscribed $1,000 to the monument fund, and at the request of plaintiff gave the check in suit therefor, but upon the agreement that the same should be payable by the bond of defendant conditioned to pay such subscription on or before March 1, 1888, if by that date the plaintiff had in its treasury $5,000, exclusive of defendant's subscription, for the erection of the monument, and if the plaintiff would ever after adhere to and fulfill all its agreements with defendant above stated. It is also alleged that such bond was tendered to plaintiff on May 3, 1887, and repeatedly thereafter, and the check demanded, but that plaintiff refused to accept the bond, or surrender the check. It is claimed that the tender of the bond pursuant to such agreement operates as a payment of the check in suit. The defendant offered testimony on the trial to prove the agreement alleged in the answer, and the tender of the bond and demand of the check, as alleged therein, but the court rejected the testimony.

The following additional facts are proved by the testimony, mainly by that introduced by the defendant. Under date of January 8, 1885, the defendant addressed the following communication to the board of supervisors of La Fayette county: “Gentlemen: Respecting the proposition to raise by tax $2,000 from La Fayette county to aid in the erection of the soldiers' monument to the memory of the deceased and wounded soldiers of said county, I will, on the receipt by the Monument Organization of said sum of $2,000, so raised by tax from said county, myself pay to said organization $1,000 of my funds towards the erection of said soldiers' monument: provided, that said sum of $2,000 be so raised by tax, and paid to said monument organization, within two years from this date. HENRY S. MAGOON.” On the same day the board passed a resolution submitting to a vote of the electors of the county at the ensuing April election or town meeting the question of raising by tax $2,000 towards the erection of such monument; $1,000 to be raised in that year, and the remaining $1,000 to be raised in 1886. A majority of the electors voted at such election in favor of such proposition, and the tax was duly levied, collected, and paid into the county treasury pursuant to such vote. In November, 1885, the plaintiff was organized as a corporation. The defendant is a signer of the articles of incorporation, and upon its organization became a director for three years, and its president. On January 6, 1887, the county board of supervisors, by resolution, ordered the county treasurer to pay over to the plaintiff corporation the $2,000 thus raised, and such treasurer executed the order on the same day by paying that amount to the treasurer of the plaintiff, who duly receipted therefor. On the following day the county treasurer notified the defendant of such payment. April 6, 1887, the defendant presented to the plaintiff's board of directors the following communication, signed by him: “To the officers, directors, and members of the La Fayette County Monument Corporation, and to said corporation: I, Henry S. Magoon, in conformity with and based upon the charter and by-laws of said corporation, and the vote of the people and resolution of the county board, and the agreement of Henry S. Magoon to said county board, hereby subscribe and hand to the treasurer of said corporation the sum of one thousand dollars in money, to be used for the purposes of said corporation, in the erection of a soldiers' monument in the center of the public square in the city of Darlington, on the condition that the net cost of said monument and its foundation...