Smith v. Starkey

233 N.W. 576, 203 Wis. 56, 1930 Wisc. LEXIS 346
CourtWisconsin Supreme Court
DecidedDecember 9, 1930
StatusPublished
Cited by9 cases

This text of 233 N.W. 576 (Smith v. Starkey) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Starkey, 233 N.W. 576, 203 Wis. 56, 1930 Wisc. LEXIS 346 (Wis. 1930).

Opinion

Fritz, J.

The ultimate question on this appeal is whether the defendants who have appealed are liable on a promissory note for $647.95, dated August 24, 1928, and signed “Farmers Elec. Line.” Without any substantial conflict, the evidence establishes the following facts: The defendants, owners of farms near the city of Richland Center, in [58]*58the fall of 1919 agreed to join in the construction of an electric power line and the purchase by the group, from that city, of current, to be paid for as measured by a master meter. They decided not to organize a corporation or partnership. They did not adopt any trade name or designation for their group or project. Each was to contribute, as accounts became due, his proportionate amount of the cost of construction, and for current measured by the master meter in proportion to the amounts used by each, as shown by their respective individual meters. Each was to be liable only for his proportionate amount of the cost of construction and cost of current. They selected John Davis, one of their number, to inform each member as to what he was to contribute as the work proceeded, to collect such contributions, and, after receiving such contributions, to use them in paying the indebtedness. It was understood that C. R. Thomson, who was president of the First National Bank of Rich-land Center (hereinafter referred to as the bank), and also one of the group, was to assist John Davis, and that all contributions were to be paid at the bank, whose officers or employees were to keep books of account and records of the transactions of the group. All payments at the bank were deposited to the credit of an account entitled “John Davis, Treasurer,” until January 1, 1925, and thereafter entitled “Farmers Electric Line, C. R. Thomson, Treasurer;” and checks drawn against that account were signed by the person selected from time to time by the group to act as treasurer. Purchases of materials were made, and orders for construction were placed, only after they were authorized at meetings of the defendants.

Deliveries of materials were made in February, 1920, and the line was completed and used to supply current during that year. John Davis informed each defendant from time to time as to his indebtedness for construction and for current. A few paid promptly, but others delayed so [59]*59that Davis could not pay all of the construction and current charges as they became due, although the defendants knew that failure to promptly pay for current might result in shutting it off at the master meter. Nevertheless, John Davis and his successors as treasurer paid the outstanding bills promptly by overdrawing the account at the bank. By April 21, 1920, the overdraft was $105.37, and it increased until it amounted to $1,475.89 on February 27, 1923. Without any express authority to obligate the other defendants, but to cover such overdrafts, John Davis and C. R. Thomson gave the bank their personal notes for $200 on June 28, 1920, $334.27 on September 10, 1920, and $350.05 on May 5, 1921.

In the spring of 1923 a majority of the defendants attended a meeting and examined a written statement which had been prepared from the records kept by the bank and which was submitted by C. R. Thomson. That statement was considered a final settlement, and it showed the total debits and credits of each defendant on account of construction and of current; and also each defendant’s unpaid indebtedness, which aggregated $1,499.37, and of which $463.51 were charged to Scott Stewart and Willis Stewart. None of the members were then, or at any other time, informed that the bank account had been overdrawn, or that moneys had been advanced by the bank, or notes given for such overdrafts or advancements. At that meeting C. W. Davis was selected to succeed John Davis as treasurer. No books of account were audited or received by C. W. Davis. He was told by John Davis that all indebtedness owing by the group had been paid. Thereafter the only payments which he made were by the checks which he issued to the city for electric current. He did not keep track of the bank account, or the payments by defendants which were credited to that account. However, when some of the defendants did not make the required contributions for cur[60]*60rent promptly, overdrafts occurred, and meetings were called in December, 1923, and August, 1924, at which the delinquents paid their arrears for current. John Davis never signed any notes in relation to those transactions. He resigned at a meeting held in January, 1925, and C. R. Thomson was selected to act as treasurer, and he attended to the collections and payments for current until the Wisconsin Power & Light Company took over the line in 1926, and thereafter rendered bills directly to each defendant for the current which he used.

It appears that on April 14, 1923, the balance owing to the bank was $490, which, except for a small amount attributable to interest that had accrued on prior loans, was then still owing because of the failure of the Stewarts to pay the $463.51 which had been charged to them. For that balance of $490, C. R. Thomson, on August 3, 1923, gave the bank a renewal note, which he signed “Farmers Electric Line.” That note has never been paid. Renewal notes, signed in the same manner, were given to the bank by C. R. Thomson from time to time, for the principal and accruing interest, until the note in suit for $647.95 was given, on August 27, 1928. When that note was given, Fred Thomson, who was cashier of the bank, and C. R. Thomson, knew that all of the defendants except the Stewarts had paid all of their respective obligations for their share of the advancements which the bank had made, and that C. R. Thomson gave the renewal notes to cover only the balances unpaid of the amounts charged to the Stewarts. When the Wisconsin Power & Light Company began to furnish the current, in 1926, Fred Thomson knew that there remained nothing for the defendants to do as a group, and that there was nothing further for C. R. Thomson to do for the group, as treasurer or otherwise.

Until after the plaintiff was appointed receiver, none of the defendants, except C. R. Thomson, ever knew that any [61]*61of the notes had been given, and no demand was ever made on any of the defendants, except the Stewarts and C. R. Thomson, for payment of the $490 balance which was owing on April 14, 1923, or of any of the renewal notes which were given subsequently for that balance and accruing interest.

In addition to the foregoing facts established without contradiction, there is testimony that the failure of the Stewarts to pay all the amounts charged against them for construction was due to a dispute between C. R. Thomson and Willis Stewart as to who was liable for the share of construction cost chargeable to a forty-acre tract which the latter had contracted to purchase from C. R. Thomson after the construction work.was under way. Scott Stewart subsequently purchased that tract, and in 1926, when the Wisconsin Power & Light Company took over the power line and was required to compensate each defendant for his interest in the line, the compensation apportioned to that tract was given to Scott Stewart, with the consent of Willis Stewart and C. R. Thomson, and to the knowledge of Fred Thomson.

There was also testimony by C. R. Thomson that it was necessary to borrow at times because of the delinquencies of some of the defendants in paying the amounts which they were to contribute. However, he did not remember ever telling them that money had been borrowed.

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Cite This Page — Counsel Stack

Bluebook (online)
233 N.W. 576, 203 Wis. 56, 1930 Wisc. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-starkey-wis-1930.