Johnson v. Weed & Gumaer Mfg. Co.

• Decision Date: 16 May 1899
• Citation: 103 Wis. 291,79 N.W. 236
• Court: Wisconsin Supreme Court
• Parties: JOHNSON v. WEED & GUMAER MFG. CO.

103 Wis. 291

79 N.W. 236

JOHNSON

v.WEED & GUMAER MFG. CO.

Supreme Court of Wisconsin.

May 16, 1899.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by Peter Johnson against the Weed & Gumaer Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action upon a promissory note executed by one S. H. Smith, and indorsed by the defendant, under circumstances hereinafter stated. Defendant is a corporation doing business at Weyauwega, Wis. Some years ago it opened a branch of its business at Ashland, Wis., under the management of Smith. Under their arrangements with him, Smith became in fact a partner in the business at that place. They conducted a store, selling groceries, flour, feed, etc.,--furnishing loggers. In the course of business the Ashland branch became possessed of a logging outfit, and for a time carried on logging operations. Plaintiff owned some timber, which he sold to Smith, under a contract reserving the title until a note given for the purchase price was paid. When the note became due, Smith gave plaintiff a new note for the balance due on the old one, payable to his order, but which was indorsed by defendant before delivery. Plaintiff relied upon such indorsement, delivered up the old note, surrendered his contract, acknowledging payment, and also surrendered his lien upon the logs which had been cut under the contract. At the time this note became due, defendant, by its president, waived protest on the back thereof. The note not being paid, plaintiff brought this suit against the defendant, admitting payments August 5, 1897, of $50, and August 10th of $25. The defendant answered that the indorsement on the note was without authority, and made for plaintiff's accommodation. The proof showed: That defendant had notes due at the bank in Ashland. Mr. Weed, the president of defendant, sent three blank notes, with the name of defendant indorsed on the back, to Mr. Gumaer, to take up the notes at the bank. Gumaer was vice president of defendant, and bookkeeper at the Ashland store. When the note of Smith to plaintiff became due, Gumaer filled out one of these notes, for the amount due thereon, payable to plaintiff, which was signed by Smith as maker, and delivered the same to plaintiff, and took up the old note and contract. It was defendant's practice to have Smith sign notes as maker, and defendant would indorse the same, and use them at the banks. It further appeared in evidence that the logging operations, and timber deals were conducted in Smith's name, with the knowledge of the defendant. The proceeds of the timber for which the note in suit was given were received by defendant, and used in paying the debts of the Ashland branch. At the time the protest of the note was waived, Mr. Weed, the president of defendant, promised to pay the note, if plaintiff would give time, and afterwards the two payments mentioned were made. Upon this evidence the court granted plaintiff's motion to direct a verdict for the balance due on the note. It is to review the correctness of this order that defendant has appealed from the judgment in favor of plaintiff.Reed & Reed, for appellant.

Cato, Sanborn, Lamoreux & Park, for respondent.

BARDEEN, J. (after stating the facts).

The facts in this case are substantially without dispute. The note in suit was given by Smith to pay the balance due on the timber he had purchased from plaintiff. At that time plaintiff had adequate security for the money due him, and he accepted the note, with defendant's indorsement thereon, in satisfaction and payment of such balance. He relied upon the faith and credit of such indorsement, released his lien upon the logs, and acknowledged...