Strong v. Bowes

• Decision Date: 04 April 1899
• Parties: STRONG v. BOWES ET AL.
• Court: Wisconsin Supreme Court

102 Wis. 542

78 N.W. 921

STRONG

v.BOWES ET AL.

Supreme Court of Wisconsin.

April 4, 1899.

Appeal from circuit court, Iowa county; George Clementson, Judge.

Action by Orville Strong against Joseph Bowes and another. There was a judgment for defendants, and plaintiff appeals. Reversed.

This is an action upon a promissory note, commenced June 25, 1897. There is no bill of exceptions. The action was tried by the court, who made findings of fact as follows: “(1) That on the 9th day of March, 1896, the defendants executed and delivered to D. W. Bowes their promissory note for $276, payable one year after date, with interest at 7 per cent., at Cobb, Wis. (2) That the payee, D. W. Bowes, shortly after the making of the note, sold it to John Cox, and at the time of sale indorsed it in blank. (3) That on May 12, 1896, Cox left the note thus indorsed with Edward F. Thomas, a merchant of Cobb, for safe-keeping and collection when due. (4) That Thomas on the day last named was indebted to the plaintiff, a banker in Dodgeville, on a note, and for overdrafts, to the amount of between $1,600 and $1,700, to secure which indebtedness the plaintiff held collateral which Thomas had deposited with him. (5) That on May 13, 1896, Thomas arranged with the plaintiff to loan him (Thomas) $1,800 more, and on that day he gave to the plaintiff his (Thomas') note for this sum, payable one day after date; the understanding at the time between the two being that the plaintiff should furnish to Thomas money as he might call for it, and as he might furnish collateral therefor, to the amount of said note. (6) That by the 19th day of June, 1896, all of said $1,800 had been advanced by the plaintiff to Thomas upon collateral security, a part of which was said note belonging to Cox, which Thomas had wrongfully appropriated and indorsed with his name in blank before he delivered it to the plaintiff, who received it in good faith. (7) That for a time the securities received as collateral for said $1,800 note were kept separate from the securities held by the plaintiff for said prior indebtedness, and, as collections were made upon the securities, the amounts received were applied upon the particular indebtedness for which they were pledged, but about September, 1896, it was agreed between the plaintiff and Thomas that all the collateral securities should be held by the plaintiff as security for all the indebtedness of Thomas to him. (8) That on March 9, 1897, the day when the said $275 note given by the defendants, and wrongfully transferred by Thomas to the plaintiff as collateral, became due, the other collateral held by him was ample to pay all of the indebtedness then owing to the plaintiff by Thomas; and before the commencement of this action enough had been collected, or otherwise realized thereon, to the satisfaction of the plaintiff, to discharge all of Thomas' indebtedness existing on that day, unless, by reason of the subsequent...