German Nat. Bank v. Barber

• Decision Date: 08 December 1914
• Parties: GERMAN NAT. BANK v. BARBER ET AL.
• Court: Wisconsin Supreme Court

159 Wis. 109

149 N.W. 767

GERMAN NAT. BANK

v.BARBER ET AL.

Supreme Court of Wisconsin.

Dec. 8, 1914.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by the German National Bank against A. J. Barber and another. Judgment for plaintiff, and defendant appeals. Affirmed.

An appeal from a judgment rendered by the circuit court of Winnebago county. This action was brought by the plaintiff to recover on four promissory notes made by the defendants. There is no dispute concerning them, except as to the note made on April 1, 1910, for $670.

On the 21st day of March, 1892, one S. W. Hallock subscribed for five shares of the stock of the plaintiff bank and agreed to pay therefor the sum of $1,500. The defendants agreed with the officers of the bank that Hallock should give his note for $1,000 and the defendants should indorse the same. This was done, and from time to time renewal notes indorsed by the defendants were given, and the note was reduced by payments of Hallock until in 1906 it amounted to only $635. At the time the original note was given it was agreed that the certificates of stock for the five shares should not be delivered to Hallock, but should be held by the plaintiff bank as security for the protection of itself and the defendants, as indorsers, and this was done. On March 30, 1896, the plaintiff bank, by its cashier, R. B. Evans, without the knowledge or consent of the defendants, or without requiring the payment of the note by Hallock, at his request delivered the certificates of stock, held as security for the plaintiff and defendants, to him. On June 27, 1896, the plaintiff transferred said stock on the books to one G. W. Washburn, without the knowledge or consent of the defendants, and without requiring payment of the note. In 1906, after Hallock had removed to New Mexico, at the request of the plaintiff bank the defendants gave their own personal note to the plaintiff to take the place of the old note given by Hallock and indorsed by defendants.

The referee found that the defendants at this time had notice that the certificates of stock had been delivered up to Hallock, more than one year prior to the execution of this note to the bank, and that the defendants thereafter, with full knowledge of such release of this security by the bank, from time to time gave renewal notes, and paid the interest thereon and a part of the principal. The referee found that the plaintiff was entitled to recover the amount due on this note, as well as the other notes sued on, and awarded judgment against the defendants for the sum of $3,671.18, together with all costs and disbursements in the action.

Motions were made by the plaintiff to confirm, and by the defendants to set aside, the report of the referee relative to this so-called Hallock note. The motion of the plaintiff for judgment was granted, and that of the defendants denied, and judgment for the plaintiffs in accordance with the findings of the...