Griffiths v. Kellogg

Rtait, 0. J. We shall not attempt to examine the very many exceptions in this case, but will content ourselves with passing upon the questions arising on-the record. The question was very fully and fairly submitted to the jury, whether the respondent voluntarily made the note in suit, or whether her signature was procured to it by a fraud practiced upon her under pretense of getting her to sign a different note for a less sum which she really owed to the lighthing-rod man. The jury found that the fraud was practiced upon her, and that she did not voluntarily make the note in suit. We entirely concur in the verdict. It is impossible to read the evidence without coming to regard the transaction as a fraudulent imposition upon the respondent. The note in suit was as little hers as if the transaction between her and the lightning-rod man had not taken place, and he had forged the note. If not forgery, it was akin to forgery. And the note so obtained is not the contract of the respondent. This is not an open question in this court. Walker v. Ebert, 29 Wis., 194; Kellogg v. Steiner, id., 626; Butler v. Carns, 37 id., 61; Chipman v. Tucker, 38 id., 43; Roberts v. McGrath, id., 52; Roberts v. Wood, id., 60. It was, indeed, contended that this doctrine is not applicable to negotiable paper, when the maker is not deceived as to the nature of the paper, but only as to the amount or other details of it. But it has been frequently applied to negotiable paper in this court. See the cases cited supra. The language of Dixon, C. J., in Walker v. Ebert, approved in Chipman v. [295] Tucker, explains tbe rule and tbe reason of tbe rule, and is conclusive of its application. “ Tbe inquiry in sucb. cases goes back of all questions* of negotiability or of tbe transfer of tbe supposed paper to a purchaser for value, before maturity and without notice. It challenges tbe origin or existence of tbe paper itself; and tbe proposition is to show that it is not in law or in fact what it purports to be, namely, tbe promissory note of tbe supposed maker. Eor tbe purpose of setting on foot or pursuing this inquiry, it is immaterial that tbe supposed instrument is negotiable in form, or that it may have passed to tbe bands of a Iona fide purchaser for value. Negotiability in'sucb cases presupposes tbe existence of tbe instrument as having been made by tbe party whose name is subscribed; for, until it has been so made and has such actual legal existence, it is absurd to talk about a negotiation, or transfer, or Iona fide bolder of it, witbin tbe meaning of tbe law merchant.” Tbe protection of tbe law merchant to a bona fide bolder of negotiable paper is not absolute. He runs tbe risk of tbe validity of tbe paper which be purchases, for which be relies not on tbe maker, but on bis immediate indorser. And question might be made whether one who purchases commercial paper, at a great discount, from a stranger, whose name be does not well know, without indorsement, without inquiry within bis power, as tbe appellant did, can always be held to be a bona fide purchaser. "Whether tbe respondent, being unable to read, tbe paper which she signed, was guilty of negligence to estop her from setting up this defense against a bona fide purchaser, was fairly submitted to the jury, and answered by their verdict for her. Tbe jury who gave tbe verdict, and tbe learned judge of tbe court below who refused a new trial, saw and beard tbe respondent and her children testify, and were better able to -judge than we are whether her not appealing to her children for assistance was negligence under tbe circumstances. [296] And even if we were disposed to think differently, we should not feel at liberty to disturb the verdict or the order denying-a new trial, on that ground. By the Comt.— The judgment of the court below is-affirmed.