Hutchins v. Da Costa

Oassoday, J. The foregoing statement contains the leading facts in the case. The land mentioned was the property of Ostrander. The plaintiff had no right, title, or interest in the land. He was the agent of Ostrander, and as such negotiated the contract of sale with the defendant. The plaintiff’s contract or arrangement with Ostrander was such that he was to receive a commission on such sale; but he was in no sense the agent of the defendant, and had no contractual relation with him of any kind. He testified to the effect that he was not acting for the defendant in the transaction; that he never acted as his agent; that he was merely selling him the property; and that the defendant was not to pay him a commission. He does not seek to recover such commission, or for such commission, or for any commission or services in this action. The action is against the defendant as the maker of the $2,500 check, and is based upon that check and nothing else. The complaint alleges, in effect, that the defendant delivered the check to Ostrander, who thereupon became the owner and holder of it; that before the commencement of this action the check was indorsed by Ostrander and by him, for value, transferred and delivered to the plaintiff; and he demands judgment for the full amount of it. The evidence is undisputed that November 3, 1891, Ostrander indorsed the check, merely to enable the First [375] National Bank of West Superior to collect the same from the New York bank upon which it was drawn; that the cashier of the First National Bank thereupon indorsed it for collection; that November 6, 1891, and before it was paid by the New York bank, the defendant and Ostrander mutually agreed that the deal should be considered off and that the contract signed by Ostrander and the defendant, and held by the First National Bank of West Superior, be surrendered to the defendant; that the same was on that day, and in the presence and at the request of Ostrander, surrendered to .the defendant; that on the same day the defendant notified the New York bank not to pay the check, and it thereupon refused such payment, and the same was returned, indorsed as mentioned; that November 12, 1891, that check was delivered to Ostrander, upon his giving his own check for the same amount, to make good his account with the bank. The question recurs whether Ostrander, after so receiving the check, had any legal claim against the defendant for the amount of it. As indicated, he had surrendered his contract with the defendant respecting the land six days before, and had agreed to surrender the check when it should be returned from New York. The statute expressly authorizes an “estate or interest in lands” tobe “surrendered or declared,” “ by act or operation of law,” as well as by deed or conveyance in writing. E. S. sec. 2302. The surrender to the defendant of the contract and written instructions, and the consent of Ostrander to the payment of the check being stopped by the defendant, and the taking up of the check from the bank by Ostrander, as mentioned, were acts which operated in law as a surrender and cancellation of all the interest which the defendant had acquired in the land, and also a surrender and cancellation of the check. This principle has been repeatedly considered and sanctioned by this court. Telford v. Frost, 76 [376] Wis. 174, and cases there cited; Kneeland v. Schmidt, 78 Wis. 348; O’Donnell v. Brand, 85 Wis. 101. In fact, the contract itself provides for its cancellation in a certain event by a simple return of the papers. By such surrender and cancellation the check became a mere nullity in the hands of Ostrander. The mere fact that, some thirty days afterwards, Ostrander delivered the check to the-plaintiff, did not put life into it as an existing obligation, especially as it appears from the undisputed evidence that the plaintiff paid no consideration for such delivery. By the Court.— The judgment of the circuit court is affirmed.