Clark County Bank v. Christie , 61 Wis. 9 ( 1884 )

Lyon, J.

Eo instruction to the jury was asked or given concerning the alleged accord and satisfaction of defendant’s indebtedness to the plaintiff bank, by the assignment of the twenty-seven shares of bank stock by the defendant to Archer; and it was not determined whether or not the testimony tended to show a valid accord and satisfaction. After the testimony was in, the subject seems to have been ignored by court and counsel. This omission was favorable to the plaintiff, because it eliminated from the case a very material ground of defense to the action. Counsel have argued the question whether there is any evidence in the record of a vaLid accord and satisfaction; but it is manifest that the question is not presented for determination by the plaintiff’s appeal, and ought not to be determined here until it shall be ruled upon by the circuit court.

The learned circuit judge instructed the jury that the plaintiff was.entitled to recover the amount of the note in suit, unless the evidence satisfied them that it had been paid. He then proceeded as follows: “This question seems to hinge mainly, and perhaps entirely, upon the question of whether the defendant had an overdrawn bank account at the time of this transaction. It would seem that if he had no overdrawn bank account at that time, then this note has been paid, but if there was in fact an overdrawn bank account, then it has not, so at least some part of it would remain unpaid, and that is the question for you to determine on all the evidence in the case.”

This language must be regarded as equivalent to a positive instruction that if the defendant’s bank account was not then overdrawn, the note in suit was paid. The jury had a right so to understand it, and probably did so understand it. The instruction is clearly erroneous. If such account was not overdrawn, the amount applied to pay the alleged overdraft— $608.15 — should have been applied upon the note in suit. But it would not pay that note in full. There would still remain an unpaid balance of over $100 due thereon, which the plaintiff was entitled to recover.

For this error the judgment of the circuit court must be reversed, and the cause will be remanded for a new trial.

By the Court.— Ordered accordingly.