Dodd v. Dunne , 71 Wis. 578 ( 1888 )

Cole, C. J.

If this were an action between the original parties to the note in suit, it is plain there could be no recovery, because it appears that the sale of the farm was not completed. Austin refused to pay the $1,600, and the contract was abandoned, so that the commissions, which ■were the sole consideration of the note, were not in fact earned, which would be a perfect defense. But it is claimed that the plaintiff is an innocent purchaser of the note for value, and is not affected by any equities which may exist between the original parties to the paper. We assume, as a, fact, that the plaintiff is such a holder, and the case will be considered in that light. Yery elaborate briefs have been filed, and numerous errors are assigned to the rulings of the trial court. It would be burdensome to attempt to notice in detail these various assignments of error, and we do not deem it necessary that we should do so for a proper disposition of the case. There are really but two questions to be considered: (1) Was there a delivery of the note, conditional or otherwise, so as to give it a legal existence? (2) If not, were the defendants guilty of such negligence in suffering or in not preventing Stevens from taking and retaining the note as renders them liable for its payment in the hands of an innocent party?

Now, as to the. delivery, the jury found, in answer to questions submitted, that the defendants never made a delivery of the note; that they did not intrust it to the keeping of Stevens; that Stevens wrongfully and fraudulently took it from the store of the defendants, without their consent either express or implied. These findings are not only sustained by the testimony, but are in accord with the clear, distinct, and overwhelming weight of evidence relating to that question. Ye are fully satisfied with the verdict, and do not well see how any other result could have been reached. The learned circuit court gave a full charge bearing on the question of delivery, stating, as it appears to us, the law verjr fairly which was applicable to the facts disclosed on the trial. The court finally closed its charge on that point by instructing the jury that if they found from the evidence that the defendants, either in person or by their agent or attorney, in any manner delivered the note to Stevens as evidence of a subsisting debt, and that the plaintiff was a Iona fide purchaser for value, before maturity, their verdict must be for the plaintiff.

The question as to the defendant’s negligence was likewise submitted to the jury upon all the evidence. The jury found that the defendants were not guilty of any negligence in not preventing Stevens from taking the note from the store. It appears that the note urns signed by the defendants at their store on the evening of its date, and it is conclusively shown that, while it lay on the desk where it had been signed, Stevens, of his own motion, without the consent, either express or implied, of the defendants, took the note from the desk, saying, as he did so, “ I will take charge of this,” put the note in his pocket, and went out of the store. The next morning he sold the note to Mr. Dun-widdie. Mr. Sale, who had drawn up the contract for the sale of the farm, and who had acted in the transaction, to some extent at least, as the attorney of the defendants, was in the store at the time Stevens took the note, as was Mr. Galbraith, the husband of one of the makers. The note had been signed that evening at the strong solicitation of Stevens, Avith the expectation that the contract for the sale of the farm to Mr. Austin would be completed and delivered the following day. The contract Avas intrusted to Mr. Sale to keep until Mr. Austin came in and paid the $1,600 provided for in the contract, but the safe-keeping of the note seems to have been strangely overlooked. This may be accounted for by the fact that all parties expected that the business would be consummated the next morning. No objection or protest AAras made by the defendants, or their attorney, Judge Sale, or by Mr. Galbraith, to Stevens’ taking the note into his possession and carrying it aAA'ay as he did. They all say they did not think anj^thing about it at the time or were surprised at his conduct. Still, as Stevens had acted as the agent of the defendants in making the sale, it is not, perhaps, strange that they did not object to his taking the charge of the note until morning. It is now insisted by the counsel for the plaintiff that the court should haATe held, as a matter of laAv, that the defendants were guilty of gross negligence in permitting Stevens to take and go away with the note. Upon all the facts, we think it was clearly a question for the jury Avhether due prudence and caution had been exercised as to the possession of the note. We have just referred to the fact that Stevens was .acting as the agent of the defendants in making sale of the farm, and there does not seem to have been anything in his conduct in the matter which Avould excite suspicion or doubt as to his integrity or trusUvorthiness. It Avould have been quite natural, and according to the usual course of transacting such business, to have intrusted all the papers to him, as a depositary, until the business was completed the next morning. Indeed, we see little ground for imputing negligence to any one in permitting Stevens to take the note, in view of the relation which he had occupied and still held to the defendants. "When it is seen how dishonorably he has acted, and how grossly he has betrayed the rights of his principals, it is easy to make the inference that no ordinarily prudent man would have intrusted him with the safekeeping of the note. But our conclusion upon the whole case is that the question of negligence, as well as that of delivery, was fairly submitted upon the evidence, under proper instructions, and we see no reason for disturbing the verdict. The judgment of the circuit court must therefore be affirmed.

By the Court.— Judgment affirmed.