Butler v. Carns , 37 Wis. 61 ( 1875 )

Lyon, J.

1. The general exception thereto taken on behalf of the plaintiffs is not sufficient to authorize us to review the charge given by the judge to the jury. It is only when the charge is wholly erroneous that such an exception is available, and such is not the character of the charge in this case. Eldred v. The Oconto Co., 33 Wis., 133, and cases cited.

2. Were the instructions proposed on behalf of the plaintiffs, and not given, properly refused ? The first of these assumes that the only question raised by the answer is, whether the signature to the note in suit is genuine or a forgery. This is an entire ,miseo.aeeption of the scope of the answer. In addition to the question of the genuineness of the signature, it raises the further question, whether, if genuine, it was not obtained by-fraud as to the character of the paper itself, under circumstances which render such fraud an available defense to an action on the note brought by a bona fide holder thereof before due, for value.

The theory of the other proposed instruction is, that no fraud in the inception of the note can operate to defeat a recovery upon it, unless the plaintiffs had notice thereof before they purchased the note. This theory is in direct opposition to the decision of this court in Walker v. Ebert, 29 Wis., 194, where it was held that “ a note to which the maker’s signature has been obtained by false representations as to the character of the paper itself, he being ignorant of its true character and having no intention to sign such a paper, and being guilty, of no negligence in doing so, is void, even in the hands of a holder for value, before maturity and without notice.” See also Kellogg v. Steiner, id., 626.

We conclude that both of the proposed instructions were properly rejected.

3. If the signature to the note in suit is genuine, the question whether the defendant affixed it thereto negligently might have been made a material one in the action. But that question was not raised on the trial in any manner, and hence no instruction concerning it was given or refused. The trial seems to have been conducted on the theory that the question of negligence was not in the case. Had the learned circuit judge been requested so to do, he would doubtless have stated the law on that subject to the jury in accordance with the decisions of this court. Under the circumstances'his silence is not error.

By the Court. — The judgment of the circuit court is affirmed.