First Savings & Trust Co. v. Cazenovia & Sauk City Railroad

Siebeckee, J. The appellant assails the finding of the circuit court to the effect that he breached his contract as general manager and for other services thereby required of him. An examination of the record discloses that the evidence bearing upon the question of his performance of the services required of petitioner under this contract is very meager and unsatisfactory. There is evidence tending to show that petitioner devoted some time and attention to the duties imposed upon him by this contract of employment, but it is not sufficient to establish the fact that he substantially performed the services required of him. The facts and circumstances in evidence show that he rendered comparatively little service from January 1 to July 1, 1913, and that he devoted but little time to the management and operation of the railroad business. The burden rested upon him to show that he performed his contract. The circuit court found on the facts and circumstances in evidence that he failed in this respect and that performance by him was not established. We cannot say that this conclusion of the circuit court is against the clear preponderance of the evidence. TJpon the record the finding of the circuit court must stand. It is contended that the circuit court erred in denying petitioner’s recovery of the interest on the amount of each past-due interest coupon from the date of its maturity. There is no dispute but that this claim for interest on these coupons is for past-due unpaid interest. The question is, Is the petitioner in law entitled to interest on interest under the facts [348] shown ? The statute on the subject provides that the right to interest shall be limited to a sum or value not greater “than at the rate of ten dollars upon one hundred dollars for one year; and in the computation of interest upon any bond, note or other instrument or agreement interest shall not be compounded, nor shall the interest thereon be construed to bear interest unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith.”' Sec. 1689, Stats. 1913. This language is plain and its application to the undisputed facts before us is free from difficulty. Neither the coupons nor any other writing provides that interest due on the bonds shall bear interest from maturity. Furthermore, in computing the interest the statute inhibits the compounding of interest. The trial court was clearly right in denying this claim of the appellant. The early decisions referred to by counsel were not made under the law as it now exists and the allusion thereto in Stubbings v. O'Connor, 102 Wis. 352, 78 N. W. 577, shows that the court, under the statute as it then existed, did not allow interest on interest unless expressly agreed to in writing. It is urged that the amounts due on coupons which matured prior to declaring the whole amount of the bonds due for default in payment of the interest thereon are to have preference in payment over subsequently maturing bonds and interest. The trust deed provides, pursuant to the resolutions of the board of directors, that it is given to secure the “pro rata, payment, dollar for dollar, of said bonds and the interest thereon,” and that such mortgage shall secure “equally dollar for dollar all of said bonds of all denominations without preference or priority of one bond over another. . . .” It is furthermore provided by the trust deed that if the trustee takes possession of the railroad and operates it, he may, after paying current operating expenses out of the revenue obtained from such operation, use such surplus revenue, “first, to the payment in full, without giving preference, priority, or [349] ■distinction to one bond over another of those hereby secured, ■of the interest due, if such net income be sufficient, but if not then pro rata/’ This provision is significant. It indicates that the only preference in making interest payments is given in case interest payments could be made out of the earnings ■of the road. This provision clearly shows an intention that the interest demands should have no preference or priority of payment out of the fund realized from the sale of the security. The provision of the trust deed above referred to in substance and effect provides'for an equal and pro rata application of the amount realized on a sale of the security, as payment of principal and interest of the unpaid obligations, and negatives the claim that past-due interest shall have a priority ■or preference over any demand against said fund by reason of prior maturity. The circuit court construed the provisions of the trust deed correctly and properly denied petitioner’s claim for a preference of payment of his interest coupons over the principal and interest declared due under the option in the deed. By the Court. — The orders appealed from are affirmed.