Goff v. Stoughton State Bank

54 N.W. 732, 84 Wis. 369, 1893 Wisc. LEXIS 73

• Court: Wisconsin Supreme Court
• Decided: March 21, 1893
• Status: Published

Opinion

WiNsiow, J.

Two questions are raised and argued: First. Was the plaintiff’s bank book admissible in evidence on plaintiff’s behalf? Second. Was the instruction requested by defendant, to the effect that the burden of proof was on the plaintiff to show that the draft was not paid for in cash when it was handed to the cashier, properly refused?

1. As to the bank book. It was an account-kept by defendant of the business transactions between it and plaintiff at and just prior to the time the check was handed in to the bank. The plaintiff contending that he handed in the draft in the book, thus indicating that he desired credit therefor upon his account, was certainly entitled to show that he then had an open account at the bank, and this fact the book certainly proved. Furthermore, there was a serious conflict in the evidence as to when this open account was balanced, the defense claiming and relying- upon their own ledger account to show that it was balanced March 30th, and the plaintiff claiming that such balance was struck in April. One item in the plaintiff’s bank book tended to contradict defendant’s claim, and show that the balance was not struct until April 1st at least. In this view-, also, the book was properly admissible.

2. As to the burden of proof. If the plaintiff had sold any ordinary article of personal property to the defendant, the burden of proving payment therefor would certainly be upon the defendant. Rossiter v. Schultz, 62 Wis. 655. Does this rule apply in the present case? We think it does. It is true that in an action upon a negotiable instrument against makers or indorsers the holder is presumed to be the owner for value before due. This rule is simply for the protection of negotiable paper as a medium of exchange by giving it a presumptive faith and credit. When it .is purchased, the purchaser knows that, as against the parties thereto, he has this presumption in his favor, and thus negotiable paper is enabled to play so great a part in the business transactions of the world. Were the bank suing the drawer or indorser of the check on account of nonpayment by the drawee, it would have this presumption in its favor. But there is no such case here. The action is not brought to recover upon commercial paper, nor is the integrity of the paper in any way involved. It is' brought by one not in any way a party to a negotiable instrument, against a purchaser thereof, to'recover the purchase price. We see no reason why there should be any presumption that it was paid for when sold, any more than in case of sale of any other chattel.

By the Court.— Judgment affirmed.