Northfield Nat. Bank v. Arndt

• Decision Date: 20 June 1907
• Citation: 112 N.W. 451,132 Wis. 383
• Parties: NORTHFIELD NAT. BANK v. ARNDT ET AL.
• Court: Wisconsin Supreme Court

132 Wis. 383

112 N.W. 451

NORTHFIELD NAT. BANK

v.ARNDT ET AL.

Supreme Court of Wisconsin.

June 20, 1907.

Appeal from Municipal Court of Marathon County; Louis Marchetti, Judge.

Action by the Northfield National Bank against Fred Arndt and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

This action was commenced September 5, 1905, to recover $666.67 and interest thereon from May 1, 1904, being the balance due on a note executed by the 12 defendants March 6, 1903, and which became due May 1, 1905. Issue being joined and trial had, the court at the close thereof found as matters of fact, in effect, that March 6, 1903, the defendants purchased of T. L. and J. L. Delancey a certain stallion for the agreed price of $2,400; that, in consideration therefor, the defendants executed and delivered to the Delanceys three promissory notes, each dated March 6, 1903, for $800, payable to the said Delanceys, one of which was due May 1, 1904, another (the note in suit) May 1, 1905, and the other, May 1, 1906; (4) that as part of said contract of sale the said Delanceys, in consideration of the same, then and there represented and warranted the said stallion to be a registered, thoroughbred, pedigreed stallion, and represented and warranted said stallion as being the Percheron stallion Reveillon, No. 31,960 (45,505), imported from France; that the defendants herein relied upon said warranty and believed said representations to be true, and purchased said stallion and executed the said notes as aforesaid, and that said stallion was the only consideration for said notes; (5) that the said stallion was not the Percheron stallion Reveillon as warranted and represented; (6) that the defendants were induced by said false representations to execute and deliver said notes, and that said defendants did execute and deliver said notes in reliance upon said warranty and said representations; (7) that, by reason of said stallion not being thoroughbred, pedigreed, and registered as warranted and represented, the said stallion was worth not to exceed $300; (8) that the note of $800 due and payable May 1, 1904, was fully paid by the defendants; (9) that by reason of said breach of warranty the consideration for the promissory note upon which this action is brought has entirely failed; (10) that June 28, 1904, the plaintiff in this action discounted said note and gave credit in the sum of $650 upon the same to the said Delanceys upon their account with said plaintiff; that said Delanceys transacted business with the plaintiff and had an account with the plaintiff since June, 1901, and had such account with the plaintiff December 14, 1905; (11) that June 28, 1904, when said note in suit was so discounted, said plaintiff was indebted to said Delanceys in the sum of $907.38; that the following day said plaintiff was indebted to said Delanceys upon said account in the sum of $857.38; that April 20, 1905, said plaintiff was indebted to said Delanceys upon said account in the sum of $2,638.88; that May 1, 1905, the plaintiff was indebted to said Delanceys upon said account in the sum of $3,161.63; (12) that the plaintiff received said note in suit by mere credit which continued to increase, and that the credit received by said Delanceys by reason of the discount of said note was not checked out before maturity of the note, and the credit given to said Delanceys on account of said note in said suit was not paid out by the plaintiff when this action was commenced; (13) that the plaintiff is not a bona fide purchaser of said note for value before maturity. And as conclusions of law the court found, in effect, that the plaintiff is not a bona fide purchaser of said note before maturity; that the defendants are entitled to judgment that this action be dismissed, and for costs and disbursements of this action, and ordered judgment to be entered accordingly. Judgment was thereupon entered accordingly January 26, 1906. Upon March 14, 1906, the plaintiff moved the trial court, upon the records and files thereof and the affidavits of the plaintiff's attorney and the cashier of the plaintiff bank, to set aside said judgment and for a new trial, which motion was by order of the court dated March 19, 1906, and entered March 21, 1906, denied. From that order and said judgment the plaintiff appealed to this court April 19, 1906.Brown, Pradt & Genrich and F. W. Hall, for appellant.

Regner & Ringle and C. B. Bird, for respondents.

CASSODAY, C. J. (after stating the facts).

The defense made to the note is that the defendants were induced to purchase the stallion for which the note and two others were given by false representations and warranties made to the defendants by the Delanceys, to whom the notes were made payable. Such representations and warranties were found by the court, and are set forth in the foregoing statement. They are, in substance, what is contained in the “Certificate of Pedigree,”...