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der to be effectual, must be made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose sig. nature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.
NOTE-T and J, with others, were liable for the amount of a certain judgment, and W, who was not so liable, signed a note with them, and left it with T to be negotiated by him to raise money to pay it; but T paid the judgment with his own means and did not attempt to negotiate the note. In an action by T against w to recover against him, a proportionate share of the note, on account of such payment, Held, that the note had not been delivered, and had no legal existence as such, and then could be no recovery. Thomas v. Watkins, 16 Wis. 571. Defend ants made a note to C or bearer. The evidence tended to shox its deposit by defendants with the supervisors of a town, to be by them delivered to C, on condition that by a certain day C should complete a road. C did not perform his contract : bnt, after the expiration of the time therefor, and after the note matured, the road was built by another person, and accepted by the supervisors. and the note delivered to him without the consent of defendants The defendants were held not liable. McLean v. Nugent, 33 Wis. 353. Where a real estate agent took possession of a note wbieh was to be delivered when certain land was sold, saying as he di so “I will take charge of this," and then sold the note to a bone fide purchaser, no sale being made, it was held that a verdict tind ing that there had been no delivery would be sustained, and that the maker was not guilty of such negligence in permitting the bot? to be taken as would render him liable to an innocent holder. v. Dunne, 71 Wis. 578. The rule of this case is changed by this act. Sec. 1676-28 post.
DELIVERY IN ESCROW. To constitute a good delivery of drafts in escrow the person making such delivery must part with the pris session and divest himself of all power and dominion over there Thus, if accepted drafts are delivered by the vendee of goods to a depositary who is to hold them until notified of the acceptan of the goods and directed by said vendee to turn the drafts ore to the vendor, there is no escrow. Lehigh Co. v. W. Sup. Co., 91 Wis. 221.
Construction of ambigui. ties.
SECTION 1675–17. Where the language of the instrument is ambiguous, or there are omissions
therein, the following rules of construction apply:
1. Where the sum payable is expressed in words and also in figures and there is a discrepancy between the two, the sum denoted by the words is the sum payable; but if the words are ambiguous or uncertain, references may be had to the figures to fix the amount;
2. Where the instrument provides for the payment of interest, without specifying the date from which interest is to run, the interest runs from the date of the instrument, and if the instrument is undated, from the issue thereof;
3. Where the instrument is not dated, it will be considered to be dated as of the time it was issued;
4. Where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail.
5. Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election.
6. Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser;
7. Where an instrument containing the words "I promise to pay" is signed by two or more persons, they are deemed to be jointly and severally liable thereon;
8. Where several writings are executed at or about the same time, as parts of the same transaction, intended to accomplish the same object, they may be construed as one and the same instrument as to all parties having notice thereof.
NOTE--A note drawn by filling out a printed blank provided for the payment of interest after maturity; also that the failure to pay interest as agreed should make the note wholly due and payable. The condition of the mortgage given to secure the note was the payment of the amount "with ten per cevt. per annum annually"
Construing the instruments together in the light of the parol testimony. it is held that to effectuate the intention of the parties, the printed words “after maturity” should be erased from the note. Stanton v. Caffee, 58 Wis. 261.
SCBD. 7. So held in Wisconsin, Dill v. White, 52 Wis. 436.
it makes no difference in the rule that one of the makers adds the word surety after his signature. Dart v. Sherwood, 7 Wis. 523.
SUBD 8. This accords with the authorities. 4 Am. & Eng. Ency. 144.
Trade or assumed names.
SECTION 1675-18. No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed his own name.
NOTE-SIGNATURE.-See Sec. 10. Matter written partly on the same line as the last word of a printed form and before the signature, and partly on a lower line, is part of the note. Kilkelly . Martin, 525. Subscription is not necessary. 4 Am. & Eng. Ency,
Signature by agent.
SECTION 1675-19. The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.
Note--Where, in an action against Cupon a promissory note signed F. B. & Co., it appeared in evidence that F. B. & Co. were doing no business of their own, but were carrying on a manufac. turing business as agents for C, who furnished the necessary money, and held himself out as their principal and liable upon all notes given by them in the business, and had authorized them to sin notes therein either “F. B. & Co. Agents" or simply “F. B. & Co", heid, that the note in suit, though made to run for five years, with interest payable annually, was presumably the note of the defend ant (, and he was liable thereon to the purchaser thereof, unless there was swicient on its face to put such puronaser upon inquiry as to the agent's authority to give it in that form, and that ques tion was one for the jury. Conroe v. Case, 74 Wis. 83.
Agent not liable.
SECTION 1675-20. Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability,
NOTE-A note sued on was as follows: "April 1st, 1858. (ne year after date, for value received, we, as trustees of the Summer field M. E. Church, for and in behalf of the said church, promis to pay Diana Taylor the sum of fifteen hundred dollars, with interest, etc. Geo. F. Austin, Edward Emery, M. Steever, W.
Chapman, R. P. Elmore, Trustees Summerfield M. E. Church." Held, that whatever migbt be the conclusion as to the personal liability of the trustees in case they had bound the church, if they did not bind the church they bound themselves. Dennison v. Austin et al., 15 Wis. 360. The evidence did not show any vote by the board of trustees, at an authorized meeting, to execute said note or to borrow the money for which it was given, but the negotiation appeared to have been continued principally by one of the trustees, and the loan effected without any such previous action, and two of the trustees signed the note, and the lender's agent then took It to the other trustees, and procured their signatures. Held, that the note was not binding upon the church. Ibid. A note reading "we promise to pay" etc., signed “San Pedro Mining and Milling Company, F. Kraus, President' is the note of the company alone; and parol evidence is not admissible to show that the president did not sign the name of the company, but signed his own name as a joint maker. Liebscher v. Kraus, 74 Wis. 387.
SECTION 1675-21. A signature by "procura- Signature by tion" operates as notice that the agent has but a tion." limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority. SECTION 1675-22. The indorsement or as- Indorsement
by corporation signment of the instrument by a corporation or or intant: by an infant passes the property therein, notwithstanding that from want of capacity the corporation or infant may incur no liability thereon.
SECTION 1675-23. Where a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority.
SECTION 1675-50. Every negotiable instru- Presumptions. ment is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.
SECTION 1675–51. Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt, discharged, extinguished or extended, constitutes value; and is deemed such whether the instrument is payable on demand or at a future time. But the indorsement or delivery of negotiable paper as collateral security for a pre-existing debt, without other consideration, and not in pursuance of an agreement at the time of delivery, by the maker, does not constitute value.
NOTE-ANTECEDENT DEBT.--Taking an indorsement in discharge of such a debt without notice of equities makes the indorsee a bona fide holder. Atchison v. Davidson, 2 Pin. 48. Stevens T. Campbell, 13 Wis. 419. Curtis v. Mohr, 18 Wis, 615. Kellogg F. Fancher, 23 Wis. 21. Knox v. Clifford, 38 Wis. 651. Heath T. Company, 39 Wis. 146. Where the payee indorses a note as collateral security for an antecedent debt which still remains unsat. isfied, no new consideration intervening, the holder is not one in due course. Cook v. Helms, 5 Wis. 107, Jenkins v. Schaub, 14 Wis. 1. See note to Sec. 1675-53, and a full discussion of the subject in 4 Am. & Eng. Ency., 290-296.
ACCOMMODATION PAPER.-See Black v. Tarbell. 89 Wis. 390.
CONSIDERATION —Where an agent gives his note in discharge of or forbearance of his principals' debt, this is a consideration. Dolph v. Rice, 21 Wis. 597. A contract void by the statute of frauds is not a consideration. Hooker v. Knab, 26 Wis. 511. Where a note was given for an amount due the payee from the maker on a cer. tain contract, this was a suflicient consideration, although the payee may have owed the maker at the time more than the face of the note, on other contracts. Knox V. Clifford, 38 Wis. 631. One who takes the note of his debtor for the amount of a debt then past due, especially if such note is signed or indorsed by a third person and payable at a future day, will be presumed to extend the time for the payment of the debt until the day fixed in the note; and such extension is a valuable consideration for the note and places the creditor in the position of an innocent holder thereof for value. Johnson Harvester Co. v. McLean, 57 Wis. 258.
SECTION 1675-52. Where value has time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time.
NOTE-VALUE.—The purchase of a $300 note of a person known by the indorsee to be in fair credit, for $.), is not a purchase for value. De Witt v. Perkins, 22 Wis. 451. Taking a note, bond and mortgage at 73 per cent. of their par value held a purchase bona fide, Bange v. Flint, 25 Wis. 544. See Griffiths y. Kellogg. 39 Wis. 290.
Where a claim to a future contingent interest in land was made in good faith, based upon the terms of a will, a release thereof was a sufficient consideration for a promissory note given therefor by one who, while denying such claim, chose to compromise it; and