Ripon Hardware Co. v. Haas , 141 Wis. 65 ( 1909 )

Maeshall, J.

The rule that production and possession of an indorsed promissory note proves, prima facie, that the in-dorsement was made according to its purport, is statutory. Sec. 4193, Stats. (1898). It applies, only, to indorsements, and when the action to enforce the paper is by an indorsee. Cook v. Helms, 5 Wis. 107; Roach v. Sanborn L. Co. 135 Wis. 354, 115 N. W. 1102. As this action, so-far as concerns plaintiff, is against a guarantor, such rule does not apply.

The only statutory presumption which could apply, under any circumstances, is the one contained in sec. 4192, Stats. (1898), providing that:

“Every written instrument purporting to have been signed or executed by any person shall be proof that it was so signed or executed until the person by whom it purports to have been so signed or executed shall specifically deny the signature or execution of the same by his oath or affidavit or by his pleading duly verified. . . .”

Assuming, without deciding, that there was a sufficient denial in this case to satisfy the statute, it does not apply, the guarantor having deceased before the trial, since it contains this exception:

“But this section shall not extend to instruments purporting to have been signed or executed by any person who shall have died previous to the requirement of such proof.”

It follows, from the foregoing, that common-law proof of the execution and contents of the guaranty was necessary. Campion v. Schinnick, 93 Wis. 111, 67 N. W. 11; Deering H. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426.

Conclusive common-law proof of the signature was given. So the issue came down to whether, when the signing occurred, the guaranty was on the paper. That, properly, called on the common-law presumption that, when the signature to a contract which, in every respect, is regular on its face, is admitted or proved, the presumption arises that the writing was, when-signed, in the form appearing at the time of its production in a proceeding to enforce it, and such presumption should prevail till overcome by clear and satisfactory evidence. Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140. The requested instruction, in connection with the proved signing of tbe paper, bearing on its face no suspicious earmarks, fairly covered such rule.

It is argued that- tbe court granted tbe new trial because tbe request suggested a right rule without stating it correctly. We do not so understand tbe learned court’s language. Tbe judge said:

The verdict of tbe jury will be set aside and a new trial awarded “upon tbe sole ground that tbe court erred to the-plaintiff’s prejudice in not incorporating in tbe charge, in view of tbe request of plaintiff for an instruction relating to Hie subject, an instruction to tbe effect that upon tbe production of tbe note in evidence without any indications of irregularity in or alteration of tbe indorsement appearing thereon, tbe presumption obtained, subject to overthrow by proof, that the guaranty was stamped on tbe back- of tbe note before or at tbe time-tlie indorsers affixed their signatures.”

If that language suggests that tbe request did not contain the qualification, it is certainly wrong. Such qualification was phrased, quite as accurately, in the request as in tbe decision. Tbe learned judge, obviously, used tbe quoted language, in tbe whole, as descriptive of tbe request and to characterize it as proper.

We must view the request and tbe decision in tbe light of tbe evidence. Considered, in general, they were not strictly accurate. They become so when viewed in the light of the fact fhat the contract, fair on its face, signed by tbe party in whose name it was challenged, was established. That fact, as a verity, must be considered incorporated into tbe request, as it was by necessary inference.

In view of the foregoing, the order, so far as appealed from by defendant, must be affirmed.

Tbe appeal of tbe plaintiff cannot be entertained. The order, so far as adverse to him, merely denied tbe application for judgment notwithstanding tbe verdict. That is-, very plainly, not appealable.

By the Gourt. — The order as to defendant is affirmed,, and plaintiff’s appeal is dismissed.