Ripon Hardware Co. v. Dodge

• Citation: 123 N.W. 659,141 Wis. 65
• Parties: RIPON HARDWARE CO. v. DODGE ET AL.
• Decision Date: 07 December 1909
• Court: Wisconsin Supreme Court

141 Wis. 65

123 N.W. 659

RIPON HARDWARE CO.

v.DODGE ET AL.

Supreme Court of Wisconsin.

Dec. 7, 1909.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by the Ripon Hardware Company against Charles H. Dodge and others. On a verdict in favor of defendants, plaintiff moved for judgment notwithstanding the verdict, with an alternative motion for a new trial, and defendants moved for judgment on the verdict. The motion for judgment was in each case denied, but a new trial was granted, and both sides appeal. Affirmed as to defendants, and plaintiff's appeal dismissed.

Appeal from the circuit court for Fond du Lac county.

Action to recover of the maker and guarantors of a promissory note.

The note was for $1,500, dated August 22, 1901, payable in one year after date, made by Charles H. Dodge to the order of Charles Cowan, and indorsed thus:

“For value received we hereby guaranty the payment of the within note at maturity or at any time thereafter, with interest at the rate of six per cent. per annum, until paid, waiving notice of non-payment and protest.

W. B. Nason,

Ed. Kopplin,

John Haas.”

It was alleged to have been, for value, so indorsed, delivered to the payee and thereafter, before the commencement of the action, for value, indorsed without recourse to the plaintiff. Haas answered and thereafter died. The action was revived against his personal representative. The answer raised these questions:--

(1) Did the deceased execute the guaranty? (2) Was there any consideration to support the note? (3) Was the note in fact paid before the commencement of the action?

The court decided all the facts alleged in the complaint to be established, conclusively, by the evidence, except that in relation to execution of the guaranty. A question on that was submitted to the jury, resulting in a finding that the guaranty was stamped on the back of the note over the signatures of the alleged guarantors, after Haas affixed his signature.

There was a motion on behalf of plaintiff, for judgment notwithstanding the verdict, with an alternative motion for a new trial, and a motion in defendant's behalf for judgment on the verdict. The latter was denied. Plaintiff's motion for judgment was denied; but that for a new trial was granted, upon the ground that the court erred in not instructing the jury that the production of the note by plaintiff with the guaranty thereon, established a rebuttable presumption that it was there before being signed; in view of plaintiff's counsel having requested an instruction, as follows:

“The possession of the note is presumptive evidence that the same was indorsed and the guaranty made by W. B. Nason and Ed Kopplin and John Haas in the manner and for the purposes it purports to be indorsed and the burden of overcoming said presumption rests upon the defendant and said defendant must overthrow said presumption if at all, by a clear preponderance of the evidence.”

Both sides appealed.

Carter & Pedrick, for plaintiff.

Morse & Williams, for defendants.

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

The rule that production and possession of an endorsed promissory note proves, prima facie, that the endorsement was made according to its purport, is statutory. Section 4193, St. 1898. It applies, only, to endorsements, and when the action to enforce the paper is by an endorsee. Cook v. Helms, 5 Wis. 107;Roach v. Sanborn Land Company, 135 Wis. 354, 115 N. W. 1102. As this action, so far as concerns plaintiff, is against a guarantor, such rule does not apply.

The only statutory presumption which could apply, under any circumstances, is the one contained in section 4192, St. 1898, providing that: “Every written instrument purporting to have been signed or executed by any person shall be proof that it was so signed or executed until the person by whom it...