Willow River Lumber Co. v. Luger Furniture Co.

78 N.W. 762, 102 Wis. 636, 1899 Wisc. LEXIS 86

Opinion

Bardeen, J.

Upon the question of fact as to whether the findings are supported by the evidence, we have no hesitancy in saying that they are so supported. Indeed, it is difficult to see how the trial court could have come to any other conclusion than he did. The burden of proving that the note was received as payment of the account was upon the defendant. Ford v. Mitchell, 15 Wis. 304. This burden it failed to sustain, and the court very properly found for the plaintiff. As long ago as 1862 this court became committed to the principle that the acceptance by the creditor of the note of the debtor or of a third person for a precedent debt was no payment, unless it was expressly so agreed. The acceptance merely suspended the remedy during its currency, and after the expiration of the credit an action might be maintained upon the original consideration, upon producing the note at the trial for redelivery or cancellation. Ford v. Mitchell, 15 Wis. 304. This case has been followed in many subsequent cases, so that the principle may be said to be fairly well settled. Paine v. Voorhees, 26 Wis. 522; Matteson v. Ellsworth, 33 Wis. 488; Aultman & Co. v. Jett, 42 Wis. 488; Hœflinger v. Wells, 47 Wis. 628; Marschuetz v. Wright, 50 Wis. 175; First Nat. Bank v. Case, 63 Wis. 504; Allis v. Meadow Spring D. Co. 67 Wis. 16; Nash v. Meggett, 89 Wis. 486; Kinne v. Mich. M. L. Ins. Co. 92 Wis. 335. With this array of decisions in this court, we hardly feel warranted in cutting loose from the rule in deference to the authority cited by defendant’s counsel, 1 Wait, Act. & Def. 569.

Counsel contends that, because the plaintiff failed to protest the Dols note, it made it its own, and hence cannot recover in this action. We know of no rule of law that requires the holder of the note to protest it for nonpayment. Timely presentation, and demand of payment, and notice to the indorser, are all that the law requires. Sumner v. Bowen, 2 Wis. 524. This the court substantially finds was done. In view of this fact, the defendant has no reasonable ground for complaint.

The plaintiff was permitted to prove that, shortly after the receipt by plaintiff of the iiote in question, its general manager saw defendant’s secretary, and informed him that the note had been received, that plaintiff would keep the-same, and if collected would credit the amount, and if not would return it, to which proposition the secretary assented. Defendant now insists that this testimony contradicts the legal import of defendant’s indorsement on the note, and was therefore incompetent to be considered. As we view it, the testimony has no such tendency. It merely relates to the circumstances under which the plaintiff was willing to accept the note, and not to defendant’s liability thereon. Upon due consideration of the finding as to this understanding, and the further finding that plaintiff was reasonably diligent in presenting the note and notifying the defendant, we see no reason for disturbing the judgment.

By the Court.— The judgment of the circuit court is affirmed.