Knox v. Clifford , 38 Wis. 651 ( 1875 )

Cole, J.

No time need be spent in considering the exception taken to the ruling of the court below striking out the evidence relating to a parol agreement, made when the note was given, to the effect that the note was not to be negotiated by the payee. That evidence directly tended to vary the terms of the note, which was negotiable. The rule is elementary, that a written contract cannot thus be contradicted or varied by parol testimony.

Against the plaintiff’s objection, the defendant was allowed to go into the question of the consideration of the note. In doing so, he clearly proved by his own testimony that the note was given for the amount due the payee on a lumber contract, which, of course, was a sufficient consideration. True, he added that the payee owed him more t.han the face of the note on other lumber contracts. It well might be that the defendant had offsets to the note as against the payee, but there was no failure or want of consideration.

But this action is brought by an indorsee, and the question is, Can he be affected by the equities existing between the original parties? The circuit court found that the plaintiff purchased .the note before maturity, for a valuable considera'tion, without notice of any defense or equities existing as between the defendant and the payee. It is claimed by the counsel for the defendant that this finding is not supported by the testimony in the case. First, it is said the plaintiff was not a holder for value. Upon that point the plaintiff testified in substance — and his statements are uncontradicted, — ■ that he held notes against Cronlchite, the' payee, and that he took the note in suit in part payment of those notes: This court has frequently held that a purchaser of negotiable paper before due, who takes it (without notice o£ any equities which attach thereto between the antecedent parties) in absolute payment of a preexisting debt, and surrenders his previous security, is a bona fide holder within the law merchant. Cook v. Vandercook, 5 Wis., 107; Stevens v. Campbell, 13 id., 376; Jenkins v. Schunb, 14 id., 1; Bange v. Flint, 25 id., 544. The facts proven fully bring the plaintiff within the application of the rule laid down in these cases.

But again it is said that the plaintiff, before he took the note, had notice of the facts which impeached its validity. We do not think the evidence warrants the inference that he had any such notice. The plaintiff testified, in respect to this point, that he wrote to his brother to see McCulloch (at whose bank the note was made payable) “ to know if the notes against Clifford were good.” He adds that he made the exchange before he heard from his brother; and had no suspicion at the time that there v?as anything wrong with the payee. To prove notice, the defendant testified, in substance, that the brother of the plaintiff came to his store to inquire about the note, and that he informed him of everything about the paper, and that the note was made on Sunday. There is nothing to show that this interview took place before the plaintiff purchased the note; and if it did, unless the plaintiff testifies falsely, he knew nothing about the information communicated to his brother when he bought the paper. In this state of the proof, we must hold with the court below, that the plaintiff took the note before maturity for a valuable consideration, without notice of any facts which tended to impeach its validity.

The court found that the note was actually made and delivered on Sunday, but was dated on Saturday. This execution of the note on Sunday, it is insisted, renders it void, even in the hands of an innocent indorsee. In Hill v. Sherwood, 3 Wis., 343, it was decided that a contract made on Sunday was invalid, and would not be enforced in a court of law. We have no intention to question or disturb that decision. For we hold this rule, that where a party- makes and puts in circulation a negotiable note purporting to be made and bearing date on some secular day, he is estopped, as against an innocent holder, from showing that it was actually executed and delivered on Sunday. We cannot well conceive of a stronger case for the application of the doctrine of estoppel than such a case presents.

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