Board of Trustees of the Seventh Day Baptist Memorial Fund v. Saunders

LyoN, C. J. The principal defense to the action is that the defendant stipulated with the agent of the academy, when he executed the subscription note in suit, that the same should not be delivered to plaintiff until similar notes should be obtained to the amount of $4,000, and that the defendant’s note should be void and should be returned to him if that amount of notes should not be obtained. The court was requested by defendant to find specifically whether such stipulation was made. The court did not do so in terms, but did find that such note was delivered by the agent of the academy corporation to plaintiff, pursuant [573] to the understanding and agreement upon which it was executed and delivered to such agent, and without any objection by defendant to such delivery thereof to the plaintiff. This finding substantially negatives the claim that the defendant’s subscription note was made conditionally, for it is conceded that notes to the specified amount were never obtained. If the defendant gave his note on the condition claimed, the same could not have been delivered to the plaintiff pursuant to the understanding between him and the agent of the academy, but such delivery in that case would have been against such understanding. There is testimony in the case tending to prove the existence of such condition, but it is opposed by testimony equally as satisfactory, and most of the reasonable probabilities of the case tend strongly to negative the existence of the condition alleged. We cannot properly disturb the finding of the court in that behalf; and if, as claimed by counsel for defendant, there were no finding that the note was not made on the condition claimed, it would probably be our duty to supply such finding. The note in suit expresses no consideration therefor; but, if it does not import a consideration, one was proved aliunde the note. It appears that many other persons executed similar notes for the same purposes, and that plaintiff advanced its money to the academy in part on the faith of such notes, including the note in suit, and that some of those persons have paid their notes. These facts show a valid consideration for defendant’s note. Lathrop v. Knapp, 27 Wis. 224; La Fayette Co. M. Corp. v. Magoon, 73 Wis. 627. We think there is no force in the objection that the foregoing facts are not available to plaintiff because not expressed in the note. It is always competent to.prove that an instrument which expresses a consideration was in fact made without consideration, and’ it would seem equally „competent to prove that an instrument silent on the subject was in fact executed upon sufficient consideration. [574] The case seems to be this: The defendant, a patron and friend of the academy, and entirely familiar with its condition and operations, promised in writing to pay plaintiff a sum of money and interest thereon at a specified time, for the use and benefit of the academy. Many other persons did the same thing, and some of them performed their respective promises. The defendant gave his subscription note for the purpose of inducing plaintiff to loan money to the academy to relieve it from its financial embarrassments. The plaintiff accepted such note with others, and on the faith of them made the desired loan, which is due and mostly unpaid. It now seeks to reimburse itself in part for such loan and interest by collecting the note thus executed to it by defendant for the express purpose of inducing it to make the loan, and in part security therefor. Is there any valid reason in law or equity why the defendant should not pay what he thus agreed to pay? We think not. By the Oowrt.— The judgment of the circuit court is affirmed.