Clark v. Horicon State Bank

Eschweiler, J.

Under sec. 1675 — 1, Stats., an instrument to be negotiable must be for a sum certain 'and be payable on demand or at a fixed or determinable future time. Under sec. 1675 — 2 the sum payable is a sum certain, although it is to be paid by instalments with a provision that upon default in payment of any instalment or- of interest the whole shall become due, or although it is-to be paid with costs of collection or an attorney fee in case payment shall not be made at maturity.

By sec. 1675 — 5 the negotiable character of an instrument otherwise negotiable is not affected by a provision which authorizes a confession of judgment if the instrument be not paid at maturity.

The notes in question here authorize any attorney of a court of record to appear for the plaintiff “in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this note, for such an amount as may be due, and also for any amount to become due thereon.”

We think the reasonable construction under these statutes to be given to this language thus quoted and all of it, ortiit-ting no part thereof unless there be cogent reason for so doing, and none so appears here, necessarily implies that the holder of such note is authorized, at any moment after its execution and delivery, to cause judgment to be entered against the maker for any amount still unpaid at such time on the note. We are not justified in construing the clause “at any time hereafter” to mean merely at any time after maturity, nor can we reject as surplusage the phrase “for any amount to become due thereon.” The first phrase speaks as of the time of the execution of the instrument and not as of its maturity. The last phrase relates to a sum not exceeding the face of the note which is not yet due by the terms of the note itself, but is according to its terms to become due thereafter. The right so given to the holder of the note to so enter judgment at any moment after receiving such note is absolutely within his control and beyond the power of the maker to prevent, and therefore it is not payable at a fixed or determinable future time within the meaning of sec. 1675 — 1, supra. The power of attorney involved here therefore renders such note nonnegotiable, and’ it is squarely within the decision of this court to the same effect in the case of Wisconsin Yearly Meeting v. Babler, 115 Wis. 289, 91 N. W. 678. In that case, as appears from the printed case, the portion of the note authorizing an appearance on behalf of the maker read as follows: “in term time or vacation, at any time hereafter, and confess a judgment without process in favor of the holder of this note for such amount as may appear to be unpaid thereon, zvhether due or not.” That case was decided after the adoption of the negotiable instrument law as it now appears, and it expressly passed upon sec. 1675 — 5, above quoted.

A similar conclusion was reached in Richards v. Barlow, 140 Mass. 218, 6 N. E. 68, and First Nat. Bank v. Russell, 124 Tenn. 618, 139 S. W. 734.

There is nothing in the case of Thorp v. Mindeman, 123 Wis. 149, 159, 101 N. W. 417, which conflicts with this ruling, inasmuch as in that case the provision in a real-estate mortgage that on default in case of failure to comply with any of the conditions of the mortgage the whole principal amount should, at the' option of the mortgagee, become due and payable, was held not to affect its negotiability, for the reason that such contingency or condition was within the power of the maker to control, which is not the situation in the case at bar.

The note, therefore, being nonnegotiable, the Horicon State Bank took the same subject to any defenses that the plaintiff might have properly interposed against it if sued by the original payee therein, and its demurrer on that ground was improperly sustained.

Were the only question on the complaint as against the individual defendants one as to whether or not it shows sufficient facts upon its face to sustain' an action for the cancellation of the instruments in .question on the ground of false representations, we fear we should have great difficulty in sustaining it, for the reasons, among others, that the complaint shows that the plaintiff had and exercised the power of examining'the lands sold, and that after having made the first purchase in June, 1915, and after the second opportunity to examine the land in question, he made his second purchase, and that the representations upon which he alleges he relied were substantially all as to future rather than as to past or present events. But we do not at this stage of the litigation deem it necessary to finally dispose of that question.

There are allegations in the complaint as to material promise's and undertakings made by the individual defendants as to the plowing and planting of the land, harvesting its crops, building a railroad into the property and a warehouse on the same, and possibly others, and of default in so doing.

While such promises might not be sufficient to come within the principles upon which relief may be had in an action for fraudulent representations in the making of a contract, they are nevertheless Adalid agreements on the part of the individual defendants, or some of them, to do certain things as part consideration for the obligations assumed by plaintiff. For breach of such executory agreements and consequent damages the plaintiff might recover damages.

It appearing, therefore, that the complaint in question does state some cause of action as against the individual defendants, and the defendant Horicon State Bank having taken the notes subject to any deductions therefrom that might properly be made on account of damages that maybe found due, if any, from the individual defendants arising out of this transaction, the other ground of the demurrer interposed by the defendant bank was also not well taken.

From the complaint it appears that in the first transaction in June, 1915, a contract was signed by plaintiff and Tallmadge concerning the transaction there involved, providing for the giving of the deed on one side, the notes and mortgages on the other, and a recital that no representations whatsoever had been made as to the nature or character of the land or the soil and its adaptability for agricultural purposes, and that the plaintiff had made his own investigation with reference to all of such matters.

At the time of the second transaction in February, 1916, with defendant Oliver, no such written contract seems to have been made, and the writings comprise the deed on one side, the mortgage and notes on the other.

It is contended that the agreements or promises alleged to have been made by the defendants Tallmadge and Oliver, "respectively, at the time of the two contracts, had been' merged in the writings and could not be relied upon by plaintiff. It is not necessary to consider at this time what effect if any the first contract between the plaintiff and Tallmadge might have with reference to that situation. The allegations as to the later transaction with the defendant Oliver show the making of no such.separate bilateral written contract as in the first instance. The writings in this second transaction are only the deed, the mortgage, and the notes. Deeds and. mortgages are not such bilateral contracts as foreclose the right of either party to show that the consideration and conditions for and of the contractual relationship between the parties is other than that expressed in the deed or mortgage, or that it is even additional to that mentioned in such instruments. Cuddy v. Foreman, 107 Wis. 519, 83 N. W. 1103; Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Jost v. Wolf, 130 Wis. 37, 42, 110 N. W. 232; Illinois S. Co. v. Paczocha, 139 Wis. 23, 31, 119 N. W. 550; Borchert v. Skidmore L. Co. 168 Wis. 523, 526, 171 N. W. 70. The allegations in the complaint as to the other promises than those expressed in the writings and made by defendants as a part of the consideration to the plaintiff for his entering into the transaction with them respectively, could be properly supported by appropriate oral testimony and form the basis of an action for damages.

By the Court. — Order reversed, and cause remanded for further proceedings.