Klauber v. Biggerstaff
| Decision Date | 28 November 1879 |
| Citation | 3 N.W. 357,47 Wis. 551 |
| Parties | KLAUBER and another v. BIGGERSTAFF, Garnishee |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Dane County.
In an action against one Slater and one Ball, plaintiffs, on the 7th of December, 1878, garnished the State Bank of Madison Wis., as being indebted to Slater or having in its possession personal property belonging to him. The garnishee denied that it was liable, unless it were by reason of having issued to Slater a certificate of deposit as follows: It further answered that it was advised and believed that said instrument was a negotiable security; and that Arthur Biggerstaff, residing in Edina, Mo., claimed of said State Bank the indebtedness represented by such certificate of deposit; and it prayed that said Biggerstaff might be interpleaded in said action and that the State Bank, on depositing with the clerk of the court the $ 1000 due on the certificate, might be discharged from liability either to plaintiff or to Biggerstaff. Accordingly, by order of the court, Biggerstaff was substituted for the State Bank as defendant; and he answered that he was the lawful owner and holder of said certificate of deposit; that on the 5th of December, 1878, he purchased and took an indorsement thereof from Slater, in good faith for a valuable consideration, and before any dishonor thereof; that under the laws of Wisconsin it was negotiable, and neither it nor the money due thereon was subject to the garnishment proceedings; and that the words "in currency," used in said certificate, signified, and were used to signify, money.
On trial of the issue in garnishment, the circuit court found as facts, among other things, that the $ 1000 deposited by Slater in the State Bank was in currency; that Slater continued to own the certificate until December 21, 1878, when he sold and indorsed it to Biggerstaff; and that plaintiffs had recovered in the principal action against Slater and Ball. As matter of law, the court held that the certificate was not negotiable, and the fund was liable to garnishment. Judgment was accordingly rendered against the garnishee for the amount of the judgment in the principal action, and the costs of the garnishee proceedings (the aggregate of which was less than $ 1000); and the clerk was ordered therein to pay plaintiffs the amount out of the fund in his hands.
From this judgment the garnishee appealed.
Judgment reversed and cause remanded.
F. J. Lamb, for the appellant, contended, among other things, that the statute passed after the former decisions of this court in regard to certificates of deposit payable in currency or current funds, viz., ch. 5 of 1868, was intended to declare instruments of this character negotiable, in accordance with the suggestion made to the legislature by this court in Platt v. Sauk Co. Bank, 17 Wis., 226. Certificates of deposit payable in money were already negotiable (Lindsey v. McClelland, 18 Wis., 484, and cases there cited); and the change of the statute must have been made for the purpose here suggested, or it was wholly nugatory. A statute ought to be so construed that, if possible, no sentence, clause or word shall be superfluous, void or insignificant. Harrington v. Smith, 28 Wis., 67, and authorities there cited. In this connection counsel suggested that the word "money" is often used, and was probably used in the statute, as including bank notes current in ordinary payments, as cash. Burr. Law Dic. and App. Encyc. , sub verbo; Mann v. Mann, 1 Johns. ch., 231, 236-7. Counsel further stated that sec. 1, ch. 60, R. S. 1858 (sec. 1, ch. 44, R. S. 1849), was taken bodily from the R. S. of New York of 1829 (sec. 1, tit. 2, ch. 4, part 2-vol. 1, p. 768), and was identical with laws in force in New York in 1812 and 1821 (see brief of counsel in Keith v. Jones, 9 Johns., 120); and that, by decisions made in New York in the years last mentioned, it was held that promissory notes payable in "York state bills," or in "bank notes current in the city of New York," were negotiable. Keith v. Jones, supra; Judah v. Harris, 19 Johns., 144. See also Pardee v. Fish, 60 N. Y., 265; Frank v. Wessels, 64 id., 155; Ehle v. Chittenango Bank, 24 id., 548. These facts seem not to have been brought to the attention of this court at the time of its former decisions upon the negotiability of paper payable in currency.
For the respondents, there was a brief by Gregory & Pinney, and oral argument by J. C. Gregory. They argued, among other things, 1. That the rule, with few exceptions, has always been, that bills of exchange or certificates of deposit payable in "currency" or in "current funds" are not negotiable (Parsons on N. & B., 45-7; Edw. on Bills, 134-5); and that this court has so decided in three several cases. The ground of those decisions was, that such paper is not payable in money. Ford v. Mitchell, 15 Wis., 305 (1862); Platt v. Sauk Co. Bank, 17 id., 223 (1863); Lindsey v. McClelland, 18 id., 481 (1864). 2. That ch. 5, Laws of 1868, declares negotiable only such notes, etc., as are payable in money. Probably this amendatory act of 1868 was aimed at O'Neill v. Bradford, 1 Pin., 390, where it was held that a "certificate of deposit was neither a bill of exchange nor a promissory note, and was not negotiable." Counsel further contended that the word "as" in the phrase "any sum of money as therein mentioned," was entirely insignificant; that the bill as originally introduced read, "any sum of money in coin or currency as therein mentioned;" that it was amended by striking out the words "in coin or currency;" and that the failure to strike out the word "as" was a mere oversight.
The controlling question in this case is, whether the certificate of deposit stated in the proceedings is negotiable.
"A promissory note may be defined to be a written engagement by one person to pay another person therein named, absolutely and unconditionally, a certain sum of money at a time specified therein." Story on Prom. Notes, § 1. The ordinary form of a certificate of deposit of money falls precisely within the definition, and it seems strange that there ever was a doubt that it was in law a negotiable promissory note. O'Neill v. Bradford, 1 Pin., 390, and cases there cited. Such doubt, however, may now be considered at rest. Kilgore v. Bulkley, 14 Conn. 362; Bank v. Merrill, 2 Hill 295; Miller v. Austen, 54 U.S. 218, 13 HOW 218, 14 L.Ed. 119.
The learned counsel for the respondents concedes this; but he takes the position that the certificate of deposit in question is not a promissory note, because it is not payable in money. It is for so many dollars, payable in currency; and the learned counsel contends that the word currency does not express or imply money. It must be conceded that the cases in this court (Ford v. Mitchell, 15 Wis. 304; Platt v. Bank, 17 Wis. 222; and Lindsey v. McClelland, 18 Wis. 481), which he cites in support of his position, lend strong sanction to it.
These cases were decided, respectively, in 1862, 1863, and 1864, when the paper money, circulating in the state de facto, was of a very heterogeneous character. How much influence this fact had on those decisions, or on similar decisions elsewhere, it is impossible to say. It is, perhaps, not altogether an uncommon infirmity of judicial rules, that they are made in view of exceptional conditions of things presently existing. Passing evils or exigencies should have little weight in general rules of decision. Judicial rules ought properly to be based upon the general condition of society, and to be broad enough to meet occasional derangements incident to it.
In Ford v. Mitchell the certificate of deposit was payable in "currency," and protested for nonpayment. It had been received by the plaintiff upon a sale made by him to the defendant. A majority of the court concurred in the judgment, on the ground that the plaintiff might recover for the original consideration. So DIXON, C. J., who delivered the principal opinion, holds. But his opinion also holds that the defendant was liable as a guarantor by force of his indorsement of paper not negotiable. PAINE and COLE, JJ., decline to express any opinion on the latter point.
In Platt v. Bank the certificate of deposit was payable in "current funds." The chief justice delivered the opinion of the court, stating that such paper had been held not to be negotiable in Ford v. Mitchell, and that the cases were not distinguishable; adding that the rule is sustained by an almost unbroken current of authority. In this the learned chief justice was not, perhaps, quite as accurate as usual; and he was manifestly mistaken in his statement of Ford v. Mitchell. Though the decision appears to have been unanimous, it plainly proceeded somewhat upon a mistake.
In Lindsey v. McClelland the certificate of deposit was payable in "current funds," and was protested for nonpayment. The opinion of the court is delivered by Mr Justice COLE, who not unnaturally falls again into the mistake that the court (in Ford v. Mitchell) had held that the words "payable in current funds" rendered the instrument not negotiable. Platt v. Bank is not cited. The opinion states that the certificate "is not payable in money, or what the court is bound to consider equivalent to money." The opinion then proceeds to show that if the certificate had been negotiable, it had been protested so as to hold the defendant as indorser; and further that it had not been received in payment, implying that the plaintiff might recover on...
To continue reading
Request your trial