New Bank of Eau Claire v. Kleiner

Marshall, J. There is nothing on the face of the papers which passed between the defendant and Minneapolis Snow, [291] Churcb & Co. when the note was made, to indicate anything but a fair transaction. Defendant purchased the benefits of a membership in said company for $15, giving his promissory note in payment. The company agreed to refund $15 if it failed to collect twenty per cent, of the- accounts placed, with it for that purpose pursuant to the contract, within ninety days after the receipt thereof. The certificate of membership issued to defendant recited the giving of the note as a payment in prwsenti of $15. That was the $15 which the company, in the contingency mentioned in the contract, agreed to refund to defendant. The agreement to refund indicates clearly that the note was to be considered between the parties as an absolute payment to the company of $15. All that is consistent with the separation of the note from the contract and the use thereof by the company as a negotiable instrument. No proof was offered tending to show that representations were made to defendant when he signed the note and the contract, that the papers contained an agreement other than what appeared therein as to the discharge of the note out of collections made on the accounts and notes furnished by defendant. The questions asked of defendant as to -whether he intended to execute a note and whether he read the papers before signing them, were properly excluded, because no fact constituting fraud was alleged in the answer. If answers had been permitted they would not have availed defendant, if for no other reason, because no proof was offered that he was misled either by the company or its agent as to the contents of the paper, ■or that he was deterred, by anything said or done by the agent who dealt with him, from reading the paper, or that there was any circumstance whatever to excuse him for not knowing just what he signed. No defense was shown by the evidence received, none indicated by the evidence rejected, and none set up in the answer. A mere allegation in a pleading that a person fraudulently did a particular [292] thing does not open the way to prove fraud where the doing of the thing alleged does not necessarily constitute fraud. In pleading fraud, either at law or in equity, facts, not conclusions, must be stated. To merely allege, as in the answer in this case, that the party charged with fraud fraudulently represented, followed by a statement of the representation complained of, which does not of itself constitute fraud, will not do. It must be made to appear by the facts alleged, independent of mere conclusions, that if the allegations are true a fraud has been committed. 9 Ency. of Pl. & Pr. 686, par. 3, and cases cited; Crowley v. Hicks, 98 Wis. 566; Gates v. Steele, 58 Conn. 316; Smith v. Brittenham, 98 Ill. 188; Bodkin v. Merit, 102 Ind. 293; State ex rel. Lewis v. Williams, 39 Kan. 517; Wood v. Amory, 105 N. Y. 278; Fogg v. Blair, 139 U. S. 118. In the last case cited IMr. Justice HarlaN said: £As the plaintiff impugned the good faith of the transaction, it was incumbent upon him to state the essential, ultimate facts upon which his cause of action rested, and not content himself with charging, generally, that what was done was a fraud or breach of trust,’ etc. Counsel for appellant cites Walker v. Ebert, 29 Wis. 194, and similar authorities, where the circumstances considered were that the signature of a party was obtained to a paper by false representations as to its character and without fault of the signer in not knowing its contents. There are no allegations in the answér here that the defendant was imposed upon in that way, nor was any proof offered to that effect. Defendant was able to read what he signed, and no reason was attempted to be given why he did not do so. A person who signs a paper without knowing its contents does so at his peril of being bound beyond what he intends unless he can show some good reason for his ignorance. Keller v. Schmidt, 104 Wis. 596. It follows that in any view of this case the trial court properly directed a verdict in favor of the plaintiff.- By the Court.— The judgment appealed from is affirmed.