Fond Du Lac Citizens Loan & Inv. Co. v. Webb

• Decision Date: 10 March 1942
• Citation: 1 N.W.2d 772,240 Wis. 42
• Parties: FOND DU LAC CITIZENS LOAN & INVESTMENT CO. v. WEBB et al.
• Court: Wisconsin Supreme Court

240 Wis. 42

1 N.W.2d 772

FOND DU LAC CITIZENS LOAN & INVESTMENT CO.

v.WEBB et al.

Supreme Court of Wisconsin.

Jan. 13, 1942.

Rehearing Denied March 10, 1942.

Appeal from a judgment of the Circuit Court for Fond du Lac County; C. F. Van Pelt, Judge.

Reversed.

Action commenced January 6, 1938, by the Fond du Lac Citizens Loan and Investment Company, a Wisconsin corporation, against Everett T. Webb, his wife Mary, and William F. Carey on a promissory note. From judgment for defendants, plaintiff appeals.

Kelley & Boerner, of Fond du Lac, for appellant.

J. E. O'Brien, of Fond du Lac, for respondents.

FAIRCHILD, Justice.

Respondent demurred to the complaint on the ground that action on the note was barred by the six-year statute of limitations, sec. 330.19, Stats. It is conceded that after W. F. Carey affixed his signature to the paper more than six years passed before the summons was issued. It is asserted by appellant that the note is a sealed instrument and that the limitation on its right of action is that fixed by sec. 330.16(2) Stats, to-wit, 20 years. Carey with his co-makers signed the note in such a manner that each of the signatures was immediately followed by the printed letters “L. S.” enclosed in brackets. The note was dated December 30, 1930, and the action was begun more than six years but less than 20 years later. Appellant's action is timely and the demurrer cannot be sustained if the note is under seal.

Respondent argues that a reference to a seal is necessary in the body of a note to make it a sealed instrument, but the statute relating to sealed instruments (sec. 235.17, Stats.) does not require that there be any reference to a seal in the body of the instrument in order to make it a sealed instrument.

Section 235.17, Stats., provides that a scroll or device as a seal upon an instrument “shall have the same force and effect as a seal attached thereto” and then it is to be “of the same obligation as if actually sealed.” That statute and the interpretation to be found in Williams v. Starr, 5 Wis. 534, 549, and Banking Commission v. Magnin, 239 Wis. 36, 300 N.W. 740, require the holding that this note so signed by Carey was under seal and necessitates the reversal of the ruling below.

Judgment reversed, and cause remanded with directions to overrule the demurrer and grant judgment in favor of plaintiff.

NELSON, J., not participating.