Klundt v. Keller

136 N.W. 611, 150 Wis. 290, 1912 Wisc. LEXIS 212

• Court: Wisconsin Supreme Court
• Decided: June 4, 1912
• Status: Published

Opinion

Winslow, C. J.

A demurrer ore terns to the complaint was interposed at' the opening of the case, but inasmuch as the complaint was formally amended to meet the supposed defect at the close of the plaintiffs’ case and it is plain that the defendants were not misled or prejudiced, there was no prejudice in the original ruling even if it were to be held erroneous when made. The questions in the case were very simple. The bond was conditioned that the sale should be binding, the note good and paid when due, or the $940 paid back.

The note was not paid, though long since due, and it was affirmatively shown without substantial dispute that the sale was not valid or binding. It was understood between Keller and the farmers that in order to render the sale effective there must be sold fifteen shares in the horse of $200 each, whereas in fact no more than thirteen shares were ever sold to bona fide purchasers. These facts appear from the testimony of the farmers and of Keller himself. Keller admits that he gave two of the supposed shareholders $200 apiece on the understanding that when the time came each should pay hack the $200 as if he was buying a share in the horse, that this was done, and the supposed payments indorsed on the note. Of course any such secret operation vitiated the entire transaction. If the sale was not to be effective until fifteen shares had been sold, it cannot be made effective by the purchase of two shares by mere stool pigeons who have been furnished the money t'o make the purchase by the seller himself. Fifteen shares must be in good faith sold, and this it appears was never done. Testimony was introduced tending to show that Keller told some of the plaintiffs at the time he received the $940 and gave the bond that' he paid some of the signers’ money in order to get them to sign the note, but this cuts no figure on the questions here presented. The plaintiffs took the bond to protect themselves against just such contingencies; in fact it is not difficult to suppose that they realized from this fact itself that collection of the note would be difficult or impossible, and hence insisted on the bond as they had a right to do.

There is no doubt', therefore, that every condition of the bond has been breached: the sale was not binding, the note uncollectible and never paid, and Keller has never paid back the $940.

The fact that the plaintiffs had sold the note to another is not material: the action is.not on the note, nor does recovery depend on its ownership. Before paying $940 of their own money to Keller they required the bond and received it. They are plainly entitled to recover back the money so paid out on the f qith of the bond when they show that its conditions have been breached. There are no other questions of sufficient importance to require treatment.

By the Court. — Judgment' affirmed.