Tiefenthaler v. Biersach

Jones, J. It is claimed by counsel for appellant that the note in question was obtained by fraud; that the title of Osborne, who negotiated the note, was defective; and that under secs. 1676-^-25 and 1676 — 29, Stats., the burden was placed upon plaintiff to prove that he acquired title as holder in due course. It is claimed by respondent’s, counsel .that the representations made at the time of the execution of the note did not amount to fraud within the meaning of sec. 1676 — 25. We shall not discuss this question since we are convinced that plaintiff met the burden of proof required by sec. 1676 — 29. Only two objections are raised to' the adequacy of the proof that plaintiff became a holder in due course under sec. 1676 — 22. The first is that he procured the note at a discount. The note of $1,000 was purchased for $900 of persons dealing in commercial paper after plaintiff was assured by one of the partners that the note was all right. .Undoubtedly if plaintiff had bought the note, given by a person known to be solvent, for a mere nominal sum or a grossly inadequate price, it would be constructive notice of the invalidity of the note in the hands of the seller and he would have bought at his peril. DeWitt v. Perkins, 22 Wis. 473; 3 Ruling Case Law, 1079. The plaintiff in this case paid about .ninety per cent, of the face of the note. It seems to us very clear under the au [248] thorities that this was no such inadequacy as to charge him with notice of any defense. Bange v. Flint, 25 Wis. 544; Heath v. Silverthorn L. M. & S. Co. 39 Wis. 146; 3 Ruling Case Law, 1079. See cases collected in note in 29 L. R. A. n. s. 378. It is next claimed that the note was unstamped and that this was notice to. the plaintiff that there was no consideration and that the note was invalid. This claim is based on the fact that there was attached to the complaint a copy of ■ the note in which it did not appear that any stamp was affixed. When the note was offered in evidence it appeared to be duly stamped, the stamp being on the back of the note. The testimony was undisputed that when the plaintiff bought the note it had the, stamp affixed as shown at the trial. There was testimony explaining that the omission to mention the stamp in the complaint was due to the inadvertence of the attorney who prepared the pleading. The subject of stamping the note was discussed when it was executed and it plainly appears from defendant’s testimony that the indorsee had authority to affix the stamp. There was no proof that there was any fraud in this respect. There has been much discussion of the effect of failure to stamp instruments 'of this character, many of the courts holding that'the provisions of the internal revenue act apply only to the federal courts. 8 Corp. Jur. 112; 3 Ruling Case Law, 923. Without entering upon this discussion, we ^conclude that under the evidence and the decisions of this court the note was properly received in evidence and that no jury question was presented. Rheinstrom v. Cone, 26 Wis. 163; Timp v. Dockham, 29 Wis. 440; State ex rel. Hemmy v. Miller, 173 Wis. 412, 179 N. W. 815, 181 N. W. 745. By the Court. — Judgment affirmed.