Uebele v. Rosen

• Decision Date: 03 December 1957
• Citation: Uebele v. Rosen, 2 Wis.2d 339, 86 N.W.2d 439 (Wis. 1957)
• Parties: Walter F. UEBELE, Sr., Respondent, v. Max ROSEN, Appellant.
• Court: Wisconsin Supreme Court

Page 439

86 N.W.2d 439

2 Wis.2d 339

Walter F. UEBELE, Sr., Respondent, v. Max ROSEN, Appellant.

Supreme Court of Wisconsin.

Dec. 3, 1957.

Charles E. Wilson, Elkhorn, for appellant.

Lehman & Seymour, Elkhorn, for respondent.

MARTIN, Chief Justice.

The following facts are presented in the moving papers: Defendant is and was a farmer and feeder of livestock in the town of East Troy. He purchased quantities of feed and other materials for use in his farming operations from the Burlington Feed Company, a corporation of which the plaintiff was one of the principal officers. During the period January 1, 1950 to September 23, 1953 defendant made purchases for which he was charged on the corporation's books sums totaling approximately $50,000. On March 21, 1953 defendant paid the corporation $12,000 and on September 23, 1953, according to the books of the company, he was still indebted to it in the sum of $3,033.46. He was also indebted to the plaintiff, individually, for $14,322.50 on account of moneys advanced by plaintiff and paid to the corporation to apply on the defendant's account. On September 23rd defendant paid $14,322.50 to the plaintiff and also paid the Burlington Feed Company $3,033.46, the balance of his account. Defendant's affidavit further states:

'* * * that in truth and in fact affiant did not justly owe to said Burlington Feed Company on said date the sum of Three Thousand Thirty-three and 46/100 Dollars ($3,033.46) but, by reason of several mistakes, overcharges and inaccuracies in the records of the corporation the actual amount of affiant's indebtedness to said corporation was substantially less than said sum; that said corporation and the above named plaintiff, Walter F. Uebele Sr., recognized the fact of such overcharges and inaccuracies and that, in order to correct such overcharges against affiant and to adjust the inequities arising from said inaccuracies, and as a token of his appreciation of the act of affiant in paying the plaintiff and the Burlington Feed Company the entire amounts of their respective claims at that time when this affiant was in a precarious financial condition, the said plaintiff gave to this affiant a bank check of the plaintiff in the face amount of Two Thousand Dollars ($2000.00); that at that time and upon the pretense and excuse that he, the plaintiff, needed the same for some purpose in connection with his income tax returns, the said plaintiff induced this affiant to sign the note dated December 14, 1953 on which the above mentioned judgment is based; that when the said note was signed by affiant there were several blanks in the printed form of the note which have since been filled and that the same has been altered in various respects without the consent and without any authorization from this affiant; that at the time of the signing of said note the above named plaintiff stated and represented to this affiant that the said note was not to bear interest, was not to be recorded and was not to be collected but was to be used by the plaintiff merely in connection with his income tax returns; that relying upon said representations this affiant consented to and did sign the said note in its then blank and incomplete form; that no demand for payment of said note or of interest thereon or of any part of said items was ever made upon this affiant from and after the date of the signing of said note until after the entry of judgment thereon on November 27, 1956. * * *'

Defendant's proposed answer alleges three defenses: unauthorized alteration of the note; failure of consideration for the note; and inducement and procurement of the note by fraudulent representations.

As to the first, the trial court states, 'The note shows no visible indication of erasure or alteration' and that:

'(c) The affidavit fails to specify what blanks were in the printed form of the note and what alterations are claimed. Sec. 116.18 statutes specifically authorizes the filling in of blanks in an uncompleted instrument.

'(d) If the agreement was for no interest why did the maker sign the note without inserting a 'no' in the second line of the note before the symbol '%'? How does the maker intend to prove this alleged oral agreement? Presumably by parol evidence.'

In effect, without affording...