McLaren v. First Nat. Bank of Milwaukee

• Decision Date: 18 March 1890
• Citation: 45 N.W. 223,76 Wis. 259
• Parties: MCLAREN v. FIRST NAT. BANK OF MILWAUKEE.
• Court: Wisconsin Supreme Court

76 Wis. 259

45 N.W. 223

MCLAREN

v.FIRST NAT. BANK OF MILWAUKEE.

Supreme Court of Wisconsin.

March 18, 1890.

Appeal from superior court, Milwaukee county.

It appears from the record that on November 14, 1887, one H. G. Fisk, of Iron Mountain, Mich., made a draft, of which the following is a copy, to-wit: “Iron Mountain, Mich., November 14, 1887. At ten days' sight, pay to the order of G. A. Blesch, cash, five hundred dollars, ($500,) with current rate of exchange, including charges for collection and remittance, for value received, and charge to the account of H. G. FISK. To E. W. Grant, Milwaukee, Wis.; that said Blesch was at the time cashier of the First National Bank of Menominee, Mich.; that said draft was thereupon discounted at said bank by said Fisk; that the said Blesch thereupon indorsed the same, and the said First National Bank of Menominee thereupon sent said draft, so indorsed, to the defendant bank for collection; that November 17, 1887, the defendant presented said draft to said E. W. Grant, who thereupon accepted the same by indorsement thereon in writing as follows: “Accepted, November 17. Payable at First National Bank, Milwaukee. GRANT CARRIAGE COMPANY. E. W. GRANT, President;” that upon the maturity of the acceptance, November 30, 1887, the defendant bank credited the amount of the draft to the First National Bank of Menominee, and charged up such amount to the Grant Carriage Company, which had funds on deposit therein; that December 2, 1887, the deposit book of the Grant Carriage Company was written up, balanced, and the vouchers returned to said company; that the draft in question was among the vouchers so returned; that January 6, 1888, the books of said company were made to show such charge and transaction; that January 28, 1888, the plaintiff was duly appointed a receiver of all the stock, effects, assets, goods, chattels, credits, things in action, franchises, privileges, and property belonging to, or in anywise appertaining to, said Grant Carriage Company, or in which it had any interest, and the said plaintiff thereupon duly qualified as such receiver; that the plaintiff thereupon brought an action against said H. G. Fisk in the courts of Michigan, and attempted to recover the amount of said draft from him, but was unable to do so by reason of his impecunious condition; that he recovered a judgment thereon against Fisk, and the same proved to be worthless; that June 5, 1888, the plaintiff made demand upon the defendant bank for the payment of said draft, and the same was refused; that February 27, 1889, the plaintiff commenced this action against the defendant bank; that issue was joined therein, and the above facts, in effect, admitted, either by the pleadings or orally, or proved; that upon the trial of this action the plaintiff tendered to the defendant an assignment of the judgment against Fisk; that at the close of all the testimony the court directed a verdict in favor of the plaintiff, and against the defendant, for the amount of said draft. From the judgment entered thereon, the defendant brings this appeal.Finches, Lynde & Miller, for appellant.

G. W. Hazelton, for respondent.

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

The Grant Carriage Company was a corporation organized under the laws of Wisconsin, having its office in Milwaukee and doing business there up to January 28, 1888, and for a long time prior thereto. During that time the company had kept its accounts with the defendant bank, and it was customary for the defendant to charge up the amount of acceptance made by the company on drafts drawn upon it to its account, where no check was given in payment. E. W. Grant owned one-half of the stock of the company, and was a director, president, and general manager of the company, and the only party with whom the bank transacted its business with the company. In fact he was the only officer of the company in Milwaukee; all the others being non-residents of the state. Grant kept no individual account with the bank. It is conceded that the draft in question was drawn on account of an individual transaction between Grant and Fisk, and did not concern the business of the carriage company. This being...