Grace v. Lynch

• Decision Date: 29 September 1891
• Citation: 49 N.W. 751,80 Wis. 166
• Parties: GRACE v. LYNCH ET AL.
• Court: Wisconsin Supreme Court

80 Wis. 166

49 N.W. 751

GRACE

v.LYNCH ET AL.

Supreme Court of Wisconsin.

Sept. 29, 1891.

Error to circuit court Iowa county; GEORGE CLEMENTSON, Judge.

Action by John F. Grace against Michael Lynch and another on a promissory note. Judgment for defendants. Plaintiff brings error. Affirmed.John F. Grace, in pro. per.

J. P. Smelker, for defendants in error.

COLE, C. J.

The power of the agent, Anderson, to make an agreement to extend the time for the payment of the note in question does not seem to have been seriously litigated in the court below. In the charge of the learned circuit judge it is assumed that he had authority to make such a contract on behalf of his principal, and the question submitted was whether he in fact did make such an agreement. These facts were not controverted, or rather are so clearly established by the evidence that we deem them true, namely: That Anderson was intrusted with the money, and caused the loan to be made for Kittleson; that he received the note given by the defendants to secure the repayment of the loan, and kept it until it was sold to the plaintiff; that he received the interest on the note when it became due, April 25, 1888, and then agreed that the note might run on for another year at the same rate of interest; and finally, when he collected the interest in advance on the 2d of April, 1889, he remitted it to his principal, and he thinks he informed his principal that he had extended the time of payment of the note for a year. The agent is not very clear and positive in any of his statements, but this is a fair inference from what he testified, and it is likewise a fair inference from what he says, that he signed the name of Kittleson on the back of the note when it was transferred to the plaintiff, for he says he held the note after the loan was made until the transfer to the plaintiff, and that Kittleson never had possession of it at all. We do not give the words of the witness, but the substance of what he said. Now, in view of these facts, and of the further fact that the power of the agent to make a contract for the extension of the time of payment was not seriously controverted on the trial, we feel justified in assuming that he had authority to make such a contract, and bind his principal. The question then arises, was the contract valid in law? The plaintiff insists that it was not a valid agreement, because it was not in writing, and was not to be performed within one year; in other words, that the statute of frauds applied to it. It appears that on the 2d day of April, 1889, some 23 days before the expiration of the second year, according to their previous understanding, the agent and one of the defendants met and had a conversation about the note and its payment, and it was then understood and practically agreed that, if the interest should then be paid, the note might run for another year. The interest was...