Seymour v. Laycock , 47 Wis. 272 ( 1879 )

LyoN, J.

1. The proof is conclusive that all of the indebtedness of Winans, the mortgagee, to the plaintiff, down to December 4, 1875, the date of the first acceptance, has been fully paid. If the note and mortgage in suit were transferred to the plaintiff as collateral for credits given by him to Winans during the season of 1873 only, the title to the securities re: verted to Winans upon payment of his indebtedness to the plaintiff contracted during that season, and the plaintiff has no further interest in them. In that event, the satisfaction of the mortgage executed by Winans is operative, to discharge it. Moreover, if the tenth finding of fact is upheld, it is conclusive against the plaintiff’s right to maintain this action; and it is not material that the defendant Henry Laycoek had notice of the transfer of the securities to the plaintiff, if he had such notice.

The evidence discloses but one negotiation between Winans and the plaintiff in respect to the transfer of the note and mortgage, and that occurred when the securities were delivered to the latter in the spring of 1873. The only testimony of the terms on which the securities were so transferred, is that given by the plaintiff’s cashier, F. D. Barnett, who negotiated on behalf of the plaintiff with Winans for the transfer. He testifies that the plaintiff was present at the negotiation; but neither the plaintiff nor Winans (both of whom testified in the case) gave any testimony on the subject.

On his examination in chief, Barnett testified that he negotiated the transaction in April or May, 1873; that the note and mortgage were transferred to the plaintiff to secure an extension of credit at plaintiff’s bank to Winans; and that such extension was the privilege to draw checks on the bank to the amount of the note. On his cross-examination he sums up the whole transaction as follows:

“ Winans came in just before he was going down to run lumber for the season on the Mississippi, and placed the note in my hands with the remark that he wanted to leave it with me as collateral for his account or credit that he expected he would have or wanted of us dui-ing the time he was gone, or until he should settle up with the bank; and we replied that we would accept it. We did not look over the account with Winans to see how we stood.

“ Ques. Has Mr. Winans paid any portion of this amount? Ans. Well, he may have paid it, but the account has been open ever since. It has been a running account with the bank ever since. It has been in and out both ways. Winans has not paid the account for which the note and mortgage were pledged. He has paid as much as the note and mortgage amounted to, and more too.”

The foregoing is substantially the whole evidence of the terms upon which the securities were transferred.

The transaction was at Chippewa Falls. Winans was about going down to run lumber for the- season on the Mississippi. His proposition, accepted by the plaintiff, was to leave the note with the plaintiff’s cashier or bank as collateral for his (Winans’) account or credit that he expected he would have or wanted “ during the time he was gone; ” that is, during the season for running lumber in 1873. This seems very clear. The proposition that the securities should be so held “ until Winans should settle up with the hank,” does not necessarily signify anything more than that the plaintiff or his agent should hold them until Winans should pay the indebtedness to secure which they were pledged. We do not perceive how it can be construed as extending the security to debts contracted after the time specified.

In view of his other testimony, the statement of the witness that “Winans has not paid the account for which the note and mortgage were pledged,” must be regarded as his construction of the contract to which he testifies, rather than as a statement of fact.

Entertaining these views of the evidence, we cannot disturb the tenth finding of fact. The debt which the note and mortgage were transferred to secure having been fully paid, the plaintiff cannot maintain this action.

2. The judgment was entered by the clerk without any formal order of the court directing him to do so. This is alleged to be irregular practice, and is assigned as error on the authority of Wadsworth v. Willard, 22 Wis., 238, and Stahl v. Gotzenberger, 45 Wis., 121.

The proposition decided in Wadsworth v. Willard is, that a judgment by confession, without action, must be signed by a judge or court commissioner, and is void without such signature. In the other case, an action in equity had been tried as a legal action, and the clerk entered judgment upon a verdict without any order or finding of the court. We reversed the judgment so entered, on the ground, as stated by Mr. Justice Taylor in the opinion, that “ in equitable actions, where the issues must be determined by the court, the clerk has no authority to enter judgment until the court has in some way declared ,what the nature of the judgment shall be, and then the clerk, as the mere hand of the court, enters upon the records the judgment so declared.”

In the last conclusion of law the court declared its judgment in this case, and we think that is sufficient authority to the clerk to enter the judgment so declared, although the court made no express order directing him to do so.

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