Merchants' Exch. Bank v. Luckow

• Decision Date: 13 December 1887
• Citation: 37 Minn. 542,35 N.W. 434
• Parties: MERCHANTS' EXCH. BANK v LUCKOW AND OTHERS.
• Court: Minnesota Supreme Court

37 Minn. 542

35 N.W. 434

MERCHANTS' EXCH. BANKvLUCKOW AND OTHERS.

Supreme Court of Minnesota.

December 13, 1887.

(Syllabus by the Court.)

Westman v. Krumweide, 30 Minn. 313,15 N. W. Rep. 255, to the effect that it is competent to prove that a written instrument, not under seal, but delivered, was to become operative only on the happening of some contingent future event, as upon its being signed by some other person, followed, and applied to a negotiable promissory note.¹

Cummings v. Thompson, 18 Minn. 246, (Gil. 228,) as to when the onus is on the plaintiff suing on negotiable paper to prove that he is a bona fide holder, followed.

Appeal from district court, Winona county; START, Judge.

Tawney & Randall, for Merchants' Exch. Bank, appellant.

Lloyd Barber, for Luckow and others, respondents.

GILFILLAN, C. J.

The facts out of which this action arose, as found by the court below, (and the evidence fully justified the findings,) are that the defendant Luckow signed the note sued upon, payable to Jacob Willaner & Co.; and the other defendants, except Willaner & Co., agreed to guaranty its payment, provided one Matthew Leinekugel and Mrs. Herman Luckow should also join in the guaranty; and under that agreement such other defendants wrote their names on the back of the note, and it was then left with the agent of the payees, Willaner & Co., to procure the signatures of Leinekugel and Mrs. Luckow, with the understanding that when those signatures should be procured, and not before, the guaranty or indorsements of such other defendants should become operative and of force. The signatures of such other persons was never procured. The payees named in it indorsed it to plaintiff, but there was no evidence as to when it was indorsed, nor as to whether or not plaintiff was a purchaser in good faith, without notice, and for value; for which reason the court found that the plaintiff was not such a purchaser.

It was held in Westman v. Krumweide, 30 Minn. 313,15 N. W. Rep. 255, and Skaaras v. Finnegan, 31 Minn. 48,16 N. W. Rep. 456, that, in case of an instrument not under seal, it is competent to show by parol that, notwithstanding its delivery, it was intended by the parties that it should become operative as a contract only upon the happening of a future contingent event, such as that it should first be executed by some other person. It is claimed that the rule ought not to apply to negotiable paper, but we can see no reason why, as between the...