N. Nat. Bank v. Lewis

• Decision Date: 13 January 1891
• Citation: 47 N.W. 834,78 Wis. 475
• Parties: NORTHERN NAT. BANK v. LEWIS ET AL.
• Court: Wisconsin Supreme Court

78 Wis. 475

47 N.W. 834

NORTHERN NAT. BANK

v.LEWIS ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Appeal from circuit court, St. Croix county; E. B. BUNDY, Judge.

This is an action to enforce collection against the makers and indorsers of two promissory notes, of which the following are copies, to-wit:

“$3,199. St. Paul, Minn., July 23d, 1887. Sixty days after date we promise to pay, to the order of Lewis & Ferguson Bros., thirty-one hundred and ninety-nine dollars, at our office, St. Paul, value received, with interest before and after maturity at the rate ______ per cent. per annum until paid. [Signed] ROOD & MAXWELL.”

“$2,000. St. Paul, Minn., July 23d, 1887. Ninety days after date we promise to pay, to the order of Lewis & Ferguson Bros., two thousand dollars, at our office, St Paul, value received, with interest before and after maturity at the rate of ______ per cent. per annum until paid. [Signed] ROOD & MAXWELL.”

It is alleged in the complaint, among other things, in effect, that July 25, 1887, the defendants, composing the firm of “F. H. Lewis & Ferguson Bros.,” for value received, indorsed and delivered said notes to the plaintiff; that at the maturity of said notes, respectively, they were presented for payment, but were not paid, of which due notice thereof was given to said indorsers, and said notes were thereupon protested for non-payment; that said payees and indorsers renewed said notes, January 26, 1888, and March 29, 1888, respectively, by giving renewal notes, and paying interest to those dates; that no part of either of the principal sums named in said notes or said renewal notes has ever been paid, and that there is now due and unpaid thereon $5,199, with interest at 8 per cent. from May 29, 1888. The makers of said notes, Rood & Maxwell, made no answer, but the indorsers thereof made answer, and, among other things, denied that Lewis was a partner of Ferguson Bros., and alleged that, in effect, after maturity of said notes, and before the commencement of this action, the amounts due on said notes were fully paid to the plaintiff by said Rood & Maxwell, or in their interest and behalf, and that there was nothing remaining due thereon; that said indorsers made said renewal notes and paid said interest in ignorance of the fact that said notes had been paid by Rood & Maxwell. Upon the trial of said action, the following facts appeared, in effect, from the undisputed evidence: That Rood & Maxwell resided at St. Paul; that September 19, 1887, they were indebted to the plaintiff in the sum of $24,428.14 upon sundry notes, some of which were secured by indorsements of third parties, and some were entirely unsecured, and some of which were overdue, and some not yet due, including the two notes mentioned in said complaint; that, to secure said notes, they, on that day, executed and delivered to the plaintiff a chattel mortgage upon the saw-mill, and all buildings, tramways, docks, structures, tools, machinery, apparatus, appliances, and appurtenances, of every kind and description whatsoever, therein or thereto belonging, or in any wise appertaining, located and being in the town of Washburn, Bayfield county, Wis., upon the premises therein specifically described, which said mortgage was thereupon filed in the proper office; that afterwards, and on the same day, the said Rood & Maxwell entered into a written agreement with E. A. Shores, of Ashland, who was at the time president of the plaintiff bank, to the effect that the said Rood & Maxwell, in consideration of $5 to them in hand paid by said Shores, thereby agreed to give, and did thereby give, to said Shores, his heirs and assigns, for the term of 35 days from and after September 19, 1887, the privilege of purchasing all the lands therein described upon the terms and conditions that the total purchase price of said lands should be $100,000; that said Shores, his heirs or assigns, should assume and pay the balance of $30,000 due on the mortgage on said lands held by the railway company, except the interest thereon to the date of such purchase; that said Shores, his heirs or assigns, were to pay to said Rood & Maxwell the balance of said $100,000, to-wit, $70,000 in cash, deducting therefrom the unpaid interest on said mortgage, if any; and provided, further, that said Shores, his heirs or assigns, should also retain out of said $70,000 such further sum as might be sufficient to pay whatever indebtedness might be due and owing by said Rood & Maxwell to the plaintiff at the date of said purchase by said Shores, his heirs or assigns; that if said Shores, his heirs or assigns, concluded to take said lands within the time therein limited, and should deposit in the plaintiff bank said sum of $70,000, upon notice thereof said Rood & Maxwell were to make, execute, and deliver to said plaintiff, for said Shores, his heirs or assigns, a good and sufficient warranty deed of said lands, subject, however, to said mortgage to the railway company, and the said plaintiff, upon placing to the credit of said Rood & Maxwell said sum of $70,000, less whatever sum might be necessary to pay such interest, and less whatever sum might be necessary to pay whatever indebtedness might then be due and owing to said plaintiff by said Rood & Maxwell, should deliver said deed...