Johnston Harvester Co. v. McLean

• Decision Date: 13 March 1883
• Citation: 57 Wis. 258,15 N.W. 177
• Parties: JOHNSTON HARVESTER CO. v. MCLEAN, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

57 Wis. 258

15 N.W. 177

JOHNSTON HARVESTER CO.

v.MCLEAN, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed March 13, 1883.

Appeal from circuit court, Brown county.Hastings & Greene, for respondent, the Johnston Harvester Company.

Hudd & Wigman, for appellant, Thomas McLean, impleaded, etc.

TAYLOR, J.

The respondents brought their action against the appellant and P. H. McLean upon an instrument in writing, of which the following is a copy:

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                ¦“$450.00 W. O. No. 12409.¦ALLONEZ, September 20, 1878.¦
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On or before the first day of December, 1879, for value received, we, the undersigned, of the town of Allonez, county of Brown, state of Wisconsin, promise to pay to the order of the Johnston Harvester Company four hundred and fifty dollars, payable at Kellogg National Bank, of Green Bay, with interest at 10 per cent. per annum until due, and 10 per cent. after due, without relief from exemption, valuation, or appraisement laws of this state. And if not paid when due, and suit is commenced upon this note, I promise to pay $10 as attorney's fees, in addition to the taxable costs; and it is further agreed that this note shall be due on demand if the maker attempts to move out of said county.

THOMAS MCLEAN.

P. H. MCLEAN.”

The appellant answers separately, and “denies that he ever jointly with the defendant P. H. McLean, or otherwise, made, signed, executed, or delivered to the plaintiff or any other person or persons the note set forth in plaintiff's complaint, or any other note.”

Upon the trial the respondents introduced P. H. McLean, the supposed comaker of the said note, as a witness on their behalf. He testified that the appellant signed the said note in his presence, at his request, and for his accommodation; that the said note was in the same shape in every respect when signed by the appellant as when introduced in evidence on the trial. The appellant, on his own behalf, testified that he signed a note for the accommodationof P. H. McLean, at his request, but that the note he signed, and which P. H. McLean requested him to sign, was a note for $45 only; that where the words “four hundred and fifty” now appear in said note was a blank at the time he signed the same; and that the only figures and characters at the top and left-hand corner of the note were “$45,” and possibly “.00” to the right of the figures “45;” thus, “$45.00.” He declares that P. H. McLean only requested him to sign a note for $45, and that he would not have signed one for $450 had he been requested so to do. P. H. McLean testified that he told the appellant, when he requested him to sign the same, “that he wanted him to sign the note to prevent them [the respondents] from making him trouble for embezzlement in the use of funds.” At the request of parties the jury found a special verdict as follows: “(1) Has the note in question been altered since its execution by writing a cipher between the figures ‘45’ and the two right-hand ciphers at the top of the note?” The jury answer “Yes.” “(2) Has the note in question been altered since its execution by writing the words ‘four hundred and fifty’ in the body of the note without the consent of the defendant Thomas McLean?” The jury answer “Yes.” “(3) Was the note in its present condition when it was received by the plaintiff?” The jury answer “Yes.” “(4) When the plaintiffs received the note did they know of any change having been made in it?” The jury answer “No.” The fifth and last question was as to the amount of the principal of the note, with interest at 10 per cent. per annum from September 23, 1878, until the date of the verdict. The jury found the amount $585. Upon this verdict the circuit court rendered judgment for the plaintiffs for the amount of the note, with interest at 10 per cent., and from the judgment so entered the defendant Thomas McLean appeals to this court.

The learned counsel for the appellant claims as one ground of error that the evidence shows that the note was given by P. H. McLean to the plaintiffs to satisfy them for money which he had embezzled from them while acting as their agent. There is very little, if any, evidence upon that question. The only evidence in the case bearing upon it at all is the statement made by P. H. McLean that he told Thomas McLean “he wanted him to sign the note to prevent them [the respondents] from making him trouble for embezzlement in the use of funds.” This is hardly sufficient to justify either a court or jury in finding that the plaintiffs received this note upon a corrupt and criminal agreement not to prosecute said P. H. McLean for embezzlement of their funds. We know of no law which prevents a party, whose funds have been embezzled by his agent, from demanding and receiving from such agent payment of the funds so embezzled, or from taking security for the payment of such money. There is no evidence in this case which has the remotest tendency to bring the case within the decisions of this court cited by the learned counsel. Swarzer v. Gillet, 2 Pin. 238;Fay v. Oatley, 6 Wis. 42;Ætna Ins. Co. v. Harvey, 11 Wis. 394;Melchoir v. McCarty, 31 Wis. 252;Baker v. Baker, 14 Wis. 131;Allart v. Lamirande, 29 Wis. 502.

It is urged by the learned counsel for the appellant that the special verdict does not cover the whole case, and is not sufficient to justify a judgment in favor of the plaintiffs. We think the special verdict covers all the disputed facts in the case. There is no pretense on the part of the appellant that he did not in fact sign the note given in evidence. His only claim is that he signed the note with the understanding that it was a note for $45 instead of for $450, as it now appears to be.

There was a dispute on the trial as to the fact whether the note was filled up in the shape it appeared when presented at the trial, when the appellant signed it. The other maker of the note testified that it was filled up as it now appears when the appellant signed it, and the appellant testifies that it was not so filled up, and that the place where the amount of the note is now written in was a blank when he signed it, and that the figures $45 were at the top left-hand corner of the note, with perhaps two ciphers, “.00,” to indicate that there were no cents. The jury have found the fact to be as testified to by the appellant, and they have also found in substance that the note when received by the respondents was in its present form, and that they had no knowledge that any change had been made in said note after it was executed by the appellant and before it was received by them. Taking the facts as found by the jury and we have this case. The appellant, in order to accommodate P. H. McLean, a co-maker of the note in question, and enable him to arrange his accounts with the respondents, signed the note in question, leaving the amount thereof in blank, with the understanding that the blank should be filled by P. H. McLean so as to make it a note for $45 and no more, and that in violation of such understanding he filled the blank with “four hundred and fifty dollars,” and annexed a cipher after the figures “$45,” in the upper left-hand margin of the note, before delivery to the plaintiffs, and that such change was made without the knowledge of the plaintiffs.

The learned counsel for the appellant claims that the filling up of the note by P. H. McLean contrary to the understanding with the appellant was a forgery of the note, and that, consequently, it is void in the hands of the respondents as to the appellant. On the other hand, it is claimed by the respondents that, having executed the note in blank as to the amount, with authority to P. H. McLean to fill the blank with the sum for which it was intended to be given, he was the agent of the appellant for that purpose, and could lawfully fill such blank in order to perfect the same as it was agreed it should be, and that having authority to fill the blank in the note with the particular sum agreed upon, his afterwards filling it with a different sum was not a forgery of the note, but a breach of his duty as the agent of the appellant, for which his principal must suffer, rather than an honest holder of the note. Having executed the note in blank as to the amount with the intention that the...