Second National Bank of Richmond v. Smith

118 Wis. 18

Opinion

Winslow, J.

There was no error in reopening the case after the parties had rested, and allowing the plaintiff to offer additional evidence; nor is it claimed by the appellants that such action was erroneous, but they do claim that the court had no power to grant the motion for a new trial after the expiration of the term at which the case was tried. The motion,' though meager in its terms, must doubtless be considered as a motion made upon the minutes of the judge, under sec. 2878, Stats, 1898, as amended by ch. 100, Laws of 1901. When such a motion is granted without the assignment of reasons, as here, the presumption is that it was granted for error of the jury, or because the court was dissatisfied with the verdict, as being inconsistent or against the weight of the evidence, if terms be imposed; but, if terms be not imposed, then the presumption is that it was granted because of errors of the court, or because the court regarded the verdict perverse. Giese v. Milwaukee E. R. & L. Co. 116 Wis. 66, 92 N. W. 357. This presumption, however, is not conclusive, and may be overcome by other facts appearing in the record. In the present case, while the imposition of costs raises the presumption that the verdict was set aside for errors of the jury, and not for errors of the court, the fact that the jury did nothing but to render the verdict directed by the court conclusively shows that the court granted the new trial because it concluded it had erred in directing a verdict for the defendants. The imposition of costs was doubtless error, but not an error of which the defendants can complain. Sec. 2878, supra, prior to its recent amendment, provided, and still provides, that such motion “can only be beard at the same term at which the trial is bad.” By ch. 100, Laws of 1901, an additional clause was added to the section, in the following words:

“If such motion be made, but not decided during such term, it shall be taken as overruled, and an exception to such constructive denial of the same shall be allowed in the bill of exceptions.”

The appellants’ claim is that this provision is mandatory and jurisdictional, and hence cannot be waived by the parties, and that, even if it could be waived, there has been no waiver in this case. We are unable to agree with the contention that the provision is mandatory or jurisdictional in the sense that the parties may not waive its requirements.' Its object evidently is to protect the parties to the action, not the public, to expedite business, and to insure an appellant against difficulties or embarrassments likely to result from inaction or neglect by the trial court. Were public policy or interests involved, the question would be quite- different, but, where such a provision is imposed simply for the benefit of the parties, the principle is well settled that its benefits may be waived by those parties, if they choose. The facts recited in the order granting the motion for a new trial are quite sufficient to constitute such a waiver by the appellants. The court announced that the motion would be decided July 3d, which was a day still within the trial term, and also announced that no court would be held July 5th. The appellants’ counsel requested that the decision be announced at a later date, and the court, in pursuance of that request, postponed the making of the decision until Monday morning, July 7th, which was the first day of the July term. It is true that the court might have held open the April term until the morning of July 7th, and thus have fulfilled the letter of the statute, by deciding the motion before the opening of the July term on that day; but to bold that, because be did not do so, be lost jurisdiction of the motion entirely, seems to apply a distinction more nice than reasonable. He did decide the motion on July 7th, just as appellants requested him to do. Apparently neither the counsel nor the court thought of the fact that a new term was then to open, or that such opening was of any consequence. Fairness to the trial court, as well as to opposing counsel, requires that the requirement of the statute be held to be waived.

This brings us to the consideration of the merits. A verdict for the defendants was directed in the first instance because the court was of the opinion that the evidence was insufficient to show that notice of dishonor bad been given to the indorsers. The verdict was set aside, and a new trial granted, evidently because the court became satisfied that the direction was erroneous, and the sole question is whether the court was right in its final rulings on this point. The note itself, though dated in Wisconsin, was actually executed, negotiated, and made payable in Indiana; and hence, there being no other controlling circumstances in evidence, it must be considered an Indiana contract. Newman v. Kershaw, 10 Wis. 333; Central T. Co. v. Burton, 74 Wis. 329, 43 N. W. 141. Tbe laws of Indiana therefore control upon all questions relating to the construction and legal effect of the contract, while the laws of the forum (i. e., the laws of Wisconsin) control as to the form of the remedy, the conduct of the trial, and the rules of evidence. Eingartner v. Illinois S. Co. 94 Wis. 70, 68 N. W. 664. Applying this principle to the present case, the result is that the law of Indiana controls as to days of grace and the manner of giving notice of dishonor to the indorsers, while the law of Wisconsin controls as to the kind and sufficiency of the evidence necessary to prove notice of dishonor. Tbe laws of Indiana which were introduced in evidence proved conclusively that days of grace were allowed in that state, and Renee it appeared that demand of payment was made on the proper day, to wit, the 20th day of December, which was the last day of grace. No statute or decision, of the state of Indiana was introduced, however, showing what notice of dishonor was required by the law of that state to fix the liability of an indorser. In the absence of such proof, the presumption is that the law of Indiana is the same as the law of Wisconsin. By sec. 1678 — 25, ch. 356, Laws of 1899 (the Negotiable Instrument Law), the notice may be written or oral, delivered personally or by mail, and may be in any terms which sufficiently identify the instrument, and indicate that it has been dishonored; and by sec. 1678 — 26 of the same law, a written notice need not be signed, and may be helped out by a verbal notice; nor does a misdescription of the instrument invalidate it, unless the party is actually misled. By the law of both states, the official certificate; under the seal of a notary who protests a bill or note, is presumptive evidence of the facts therein stated. Sec. 176, Stats. 1898; Annotated Statutes of Ind. 1894, § 8040. There can be no question, therefore, of the admissibility of the notary’s certificate in the present case, nor of its presumptive effect as evidence. Carruth v. Walker, 8 Wis. 252. It is argued, however, that the officer has not certified as to the contents of the notice, and that hence there is no proof that any proper notice was mailed. Sec. 176, supra, provides that the notary shall set forth in his certificate the contents of the notice. As has been seen, all that the law now requires as to the notice is that it shall identify the instrument, and state that it has been dishonored, and the question is whether the certificate of the notary in the present case shows that the notice mailed by him filled these requirements. We think it does. The certificate fully shows that the note itself was presented, that payment thereof was refused, and that it was protested. It then states that notice of the protest of the before-mentioned note (i. e. the note of which a copy is attached) was served on the indorsers by depositing copies of the notice in the post office. The only reasonable construction that can be given to this certificate as to the notice is that it was a notice that “the before-mentioned note” .was duly protested for nonpayment. If the notice was to this effect, then it certainly identified the instrument, and indicated that it had been dishonored. We think, therefore, that the certificate sufficiently states the contents of the notice served.

As to the appellant Smith there are other considerations which do not apply to the appellant Herman. It appears that upon his examination under sec. 4096, which was introduced in evidence, he identified the note, and gave the following testimony:

“Q. Did you, on or about the 20th day of December, 1900, receive any notice of any kind, from the bank or any notary, that this note was unpaid? A. At a later date than that. Q. At what date? A. I don’t remember — after the 20th. Q. How much after? A. I cannot give the exact date. Q. Was that notice in writing ? A. Yes sir. Q.> Have you it in your possession? A. Ho, sir. You mean here or— Q. It was within a day or two of the 20th, was it not? A. Yes, sir.”

This testimony tended strongly to show that he received timely notice of the dishonor of the note, and it was certainly sufficient to go to the jury on that question, even had the notary’s certificate been insufficient. There was also uncon-tradicted evidence given by the bank officers to the effect that Mr. Smith said to them on the 17th of December that if they would wait until Thursday, the 20th, until four o’clock p. m., he would come up to the bank and pay the note. This was sufficient evidence to go to the jury upon the question of waiver of notice of protest. Worden v. Mitchell, 7 Wis. 161; 2 Daniel, Neg. Inst. §§ 1103, 1104 (4th ed.). It is true that Mr. Smith was the person who, as an officer of the corporation maker, executed the note, and, if this promise was made on behalf simply of th© maker, it would not be a waiver of bis rights as an indorser; but if, under the circumstances, the bank officers were entitled to understand and did understand from his statement that he meant that he would pay the note in his personal capacity as indorser, it is difficult to see ydiy the promise did not amount to a waiver of protest, and notice thereof, if in fact the notice given proved to be defective. The question should have gone to the jury.

By the Gourt. — Orders affirmed on both appeals.,