Weinbergen v. McConnell

• Citation: 213 N.W. 313,192 Wis. 539
• Parties: WEINBERGEN ET AL. v. MCCONNELL ET AL.
• Decision Date: 05 April 1927
• Court: United States State Supreme Court of Wisconsin

192 Wis. 539

213 N.W. 313

WEINBERGEN ET AL.

v.MCCONNELL ET AL.

Supreme Court of Wisconsin.

April 5, 1927.

Appeal from Circuit Court, Lafayette County; S. E. Smalley, Judge.

Action by Fred Weinbergen and another against C. F. McConnell and others. Judgment for plaintiffs, and defendant Fred H. Bartels appeals. Affirmed.--[By Editorial Staff.]

This is an action to foreclose a mortgage for $16,000, executed February 28, 1920, on 160 acres of land in said county, to secure a note of like amount and of the same date, payable to the defendant Bartels five years after date, with interest at the rate of 5 per cent. per annum, payable semiannually.

In November, 1919, the plaintiffs, the owners of a farm of about 240 acres, sold the same to the defendant Bartels. Bartels, in June of the same year, had sold a farm belonging to him to one Clarence Roy, and the latter, together with his wife, agreed to execute and deliver to Bartels, as a part consideration for said sale, a promissory note for the sum of $16,000, secured by a purchase-money mortgage upon the land. It was agreed between the plaintiffs and the defendant Bartels, at the time the latter purchased plaintiffs' farm, that the aforesaid mortgage executed by Roy, or Roy and others, would be assigned to the plaintiffs as part consideration for the sale of plaintiffs' farm to the defendant Bartels.

McConnell & Wilson were real estate agents at Darlington, and had negotiated the contract from Bartels to Roy. On the 1st day of March, 1920, the plaintiffs and the defendant Bartels met at the office of Kopp & Brunckhorst, attorneys at Platteville, to execute the contract of date of November 28, 1919, between the plaintiffs and the defendant Bartels, but, instead of offering to transfer the note and mortgage of Roy, or Roy et al., Bartels tendered a note and mortgage signed by the real estate firm of McConnell & Wilson. The note so tendered was indorsed by Bartels, without recourse. Plaintiffs immediately protested against this note and mortgage, for the reason that they were not executed by the proper parties as agreed in the contract of November 28, 1919, and they threatened to cancel and annul the entire transaction. After further consideration of the matter, the plaintiffs represented to the defendant Bartels that they would accept the note and mortgage, upon condition that Bartels would be absolutely liable upon the note, to the same extent as though he were the maker thereof, and upon the further condition that they (the plaintiffs) would be relieved from giving any notice whatsoever in order to fix the liability of Bartels as an indorser. It was further agreed that the words “without recourse” were to be scratched out, and that Bartels should evidence his consent thereto by signing his initials after the word “without recourse.” The foregoing conditions insisted upon by the plaintiffs were thereupon apparently accepted by Bartels, and the words “without recourse” were stricken out, and annexed to the words stricken out Bartels affixed his initials, viz. “F. B.” Bartels upon the trial denied that these initials were in his handwriting, but a comparison thereof with his admitted signatures clearly manifested that he wrote these initials.

The evidence also discloses that the transaction was thereupon closed, and that thereafter plaintiffs had no dealings whatever with the firm of McConnell & Wilson, or either of the members. Subsequent to this transaction both McConnell and Wilson died, and their estates were duly probated, and the plaintiffs filed no claim whatsoever against their estates.

It also appears that, on a number of occasions before the maturity of the note, plaintiffs by notice in writing demanded from the defendant Bartels the payment of the interest due on the note, and of the principal. While this note for $16,000 matured on March 1, 1925, and was made payable at the First National Bank of Darlington, it was not presented at the bank for payment upon the due date. A few days after the maturity of the note the plaintiffs and Bartels met in Platteville, and at this time plaintiffs made demand for the payment of the note, to which Bartels replied that he was unable to make payment at that time; that it would break him in business; and further stated that he would pay the note if he were given additional time. It was thereupon agreed by the plaintiffs that they would extend the note upon condition that the defendant Bartels and one Mrs. Wilson, who was then the owner of the land, would join with the plaintiffs in an extension agreement. The said firm of Kopp & Brunckhorst were then requested to prepare an extension agreement, which both the plaintiffs and the defendant Bartels signed. Mrs. Wilson, however, refused to join in the agreement.

A short time subsequent thereto this action of foreclosure was begun and prosecuted to final judgment. The judgment ordered by the court provided for a deficiency judgment against Bartels. From the judgment so entered, the defendant Bartels has prosecuted this appeal.Murphy & Murphy, of Platteville, for appellant.

Kopp & Brunckhorst, of Platteville, for respondents.

DOERFLER, J.

The foregoing facts in substance were incorporated in the court's findings, and are supported by the great weight of...