Ferring v. Verwey

• Decision Date: 04 February 1930
• Citation: 200 Wis. 631,229 N.W. 46
• Parties: FERRING v. VERWEY.
• Court: Wisconsin Supreme Court

200 Wis. 631

229 N.W. 46

FERRING

v.VERWEY.

Supreme Court of Wisconsin.

Feb. 4, 1930.

Appeal from a judgment of the Circuit Court for Kenosha County; E. B. Belden, Circuit Judge.

Action by Alphonse P. Ferring against Louis Verwey. Judgment for plaintiff, and defendant appeals. Affirmed.--[By Editorial Staff.]

Action commenced January 12, 1929; judgment for plaintiff entered July 22, 1929. Defendant appeals.

The case is one of mortgage foreclosure. The notes the mortgage secured are held by the plaintiff, who is a bona fide purchaser for value in due course before maturity. The defendant Verwey, the maker of the notes, by his answer avers that the notes and mortgage were executed and delivered to the payee of the notes, one Miller, a contractor, as consideration for the construction by Miller of a building on the mortgaged land; that Miller on his part agreed to furnish material for and construct the building and to pay for all material used in and all labor done upon it, and turn over the completed building and premises to Verwey free from materialmen's and mechanics' liens; that Miller failed to pay for part of the material and labor, and liens for the amounts thereof not paid were duly filed against the premises which Verwey was obliged to pay $2,353 to satisfy; and asks credit on the mortgage debt for the sum so paid with interest.

The notes are forty-two in number, aggregate $4,250, fall due consecutively one each month, and except as to time of payment are of tenor following:

“$100.00 Chicago, Illinois, June 23rd, 1927.

On February 23rd, 1928, after date, for value received, I promise to pay to the order of Joseph J. Miller, the principal sum of one hundred and no/100 dollars, with interest thereon, until the maturity hereof, at the rate of seven per centum per annum, payable monthly on the unpaid balance on the 23d day of February, 1928. Both principal and interest are payable at the office of Sheppley Bros. Realty Co., 100 West Monroe St. or such other place as the legal holder hereof may from time to time in writing appoint.

This note is secured by a mortgage of even date herewith, to Joseph J. Miller, on Real Estate in Kenosha County, Wisconsin, and is to bear interest at the rate of seven per centum per annum after date more specifically provided for in the Mortgage of which this is a part.

Mortgage Note No. 8.

Louis Verwey.”

The mortgage contains a provision that the mortgagor should keep the premises insured for the benefit of the mortgagee, and in case of his failure to do so, the mortgagee might procure insurance, and the expense of procuring it, with interest at the legal rate, should be a lien on the mortgaged premises added to the amount of the notes and secured by the mortgage until payment of the notes. It also provided that the mortgagor should pay, when due, all taxes levied against the premises and all taxes levied on the notes, and, in case of his failure so to do, or to keep the premises insured, the whole unpaid principal sum and all sums paid for insurance and taxes, with interest, should at the mortgagee's option become due and payable and collectible by suit at law or foreclosure of the mortgage.

The plaintiff proved default in payment of the notes, his steps to accelerate the due date of the amounts secured by the mortgage, and that something over $4,000 was due and unpaid.

The defendant Verwey offered evidence to prove the facts stated in his answer by way of recoupment, and the court refused to permit him to do so.

L. E. Vaudreuil, of Kenosha, for appellant.

Stephenson, Fisher & Richardson, of Kenosha, for respondent.

FOWLER, J.

[1] The appellant claims it was error for the trial court to reject evidence of the facts pleaded in his answer by way of recoupment. Whether it was depends on whether the notes are negotiable instruments, as, if they are not, the defendant may interpose any defense that he might interpose against the payee named in the notes were the payee seeking foreclosure. The appellant claims the notes are not negotiable because the amount due thereon is uncertain, and bases his contention of uncertainty on the fact that each note contains a provision that it is secured by a mortgage, and is to bear interest at 7 per cent. “more specifically provided for in the mortgage of which this is a part”; and on the further fact that the mortgage provides that the mortgagor shall keep the premises insured, and that on his failure to do so the mortgagee may insure them, and the premium and cost of effecting the insurance, with interest, shall be a lien on the premises “added to the amount of said note until the payment” of the note.

A note to be negotiable must contain an unconditional promise “to pay a sum certain.” Section 116.02, W. S. The following section of the statutes provides that the sum payable...