Jackman v. Inman

• Decision Date: 10 November 1908
• Citation: 118 N.W. 189,137 Wis. 30
• Parties: JACKMAN v. INMAN.
• Court: Wisconsin Supreme Court

137 Wis. 30

118 N.W. 189

JACKMAN

v.INMAN.

Supreme Court of Wisconsin.

Nov. 10, 1908.

Appeal from Circuit Court; Rock County; George Grimm, Judge.

Action by C. S. Jackman, trustee under the will of W. T. Van Kirk, deceased, against J. E. Inman. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

On July 7, 1900, the defendant gave W. T. Van Kirk, now deceased, a note for $200, with interest at the rate of 7 per cent., due in one year. This action is brought by the trustee under the will of the deceased on this note, which was found among the decedent's papers. The defense is payment. Defendant claims that in 1901 he gave a new note to take the place of the one upon which this action is brought, which was lost, and that he thereafter fully paid the second note, and thereby extinguished the debt. The second note has an indorsement upon its face, claimed by the defendant to be in the handwriting of the deceased, as follows: “Paid in full with int.” Upon its back is the following indorsement, which defendant claims was made by him at the time he gave the note to the deceased: “Int paid on old note 14.00 Nov. 18 1901 old note lost if found canceled by this note.” Defendant introduced in evidence a receipt for a year's interest on a note, and was permitted, over objection, to testify that the receipt referred to the note on which suit had been brought. The action was before this court on a former appeal, and is reported in 114 N. W. 489. Upon the remittitur and a new trial, judgment resulted for the defendant.

This is an appeal from such judgment.

William G. Wheeler, for appellant.

Jeffris, Monat, Smith & Avery, for respondent.

SIEBECKER, J. (after stating the facts as above).

Upon the trial the defendant produced a note and testified that it was in his handwriting, including the indorsements thereon, except the printed words and the words “Paid in full with int.” written across its face, which words he states were not on it when he parted with possession of it. He also states that it was drawn about November 18, 1901. He was also permitted to testify in response to a question as to whether or not he knew what the words “Old note lost, if found canceled by this note” referred to, and stated: “A. It refers to a lost note. Q. To what lost note? A. It refers to the note that they are bringing suit on.” Defendant also produced a receipt for one year's interest on a note, signed by the deceased and dated November 18, 1901,...