CASES

IN THE

SUPREME COURT

OF

WISCONSIN.

CHIPMAN V. TUCKER.

(38 Wis. 43.)

Negotiable instrument — delivery —right of bona fide holder.

A promissory note and a mortgage securing it were placed in the hands of R. to be delivered to the payee upon the happening of a certain event, and R., without authority, delivered them to the payee without waiting for such event. Held, that the maker was not liable on them even to a bona fide holder for value.

ACTION to foreclose a mortgage executed by the defendant Reuben

Tucker and wife on June 25, 1857, to secure a promissory note, under seal, of said Tucker to the Ripon and Wolf River Railroad Company for $1,000, bearing same date and payable in ten years from January, 1857.

Defense that there never had been a valid delivery of the note or mortgage. The facts are sufficiently stated in the opinion.

The defendants had judgment dismissing the complaints and the plaintiff appealed.

Felker & Weisbrod, for appellant, argued that the note was given with the intention that it should be thrown upon the market to raise money upon, and to pass from hand to hand by delivery, and was in every sense commercial paper (Clark v. Janesville, 10 Wis. 136, 188; Bushnell v. Beloit, id. 195; Knox Co. v. Aspinwall, 21 How. [U. S.] 539; 2 Hill, 177; 1 Stockt. Ch. 667-9; Gelpcke v. Dubuque, 1 Wall. 176-206; id. 83; 2 id. 283; Blake v. Supervisors, 61 Barb. 149; Edwards on Bills, 61, and cases there cited); that, as the uncontradicted evidence shows that plaintiff took the note and mortgage in payment of a debt, he was a holder for value (23 Wis. 21; 25 id. 144); and that the note was properly indorsed. Crosby v. Roub, 16 Wis. 616; Bange v. Flint, 25 id. 544. VOL. XX.-1

Chipman v. Tucker.

Gabe Bouck, for respondent, to the point that the note, even in the hands of a bona fide holder, was invalid, because, never having been delivered by the maker, it had no legal inception, cited Andrews v. Thayer, 30 Wis. 228; Walker v. Ebert, 29 id. 194; S. C., 9 Am. Rep. 548; Kellogg v. Steiner, id. 626; Tisher v. Beckwith, 30 id. 55; Everts v. Agnes, 4 id. 343; Wait v. Pomeroy, 20 Mich. 425; S. C., 4 Am. Rep. 395; Burson v. Huntington, 21 id. 415; S. C., 4 Am. Rep. 497; Whitney v. Snyder, 2 Lans. 477; Chapman v. Rose, 44 How. Pr. 364; Puffer v. Smith, 57 Ill. 527; Taylor v. Atchison, 54 id. 196; S. C., 5 Am. Rep. 118; Putnam v. Sullivan, 4 Mass. 45; Nance v. Lary, 5 Ala. 370; Edwards on Bills, 323, 452, et seq.; Clark v. Sisson, 22 N. Y. 312; Hamilton v. Vought, 34 N. J. Law (5 Vroom), 187; Munn v. The Commission Co., 15 Johns. 55; Powell v. Waters, 8 Cow. 669. He also contended, upon the evidence, that the Circuit Court properly found the plaintiff not to be a bona fide holder.

COLE, J. The undisputed evidence shows that the defendant executed the note and mortgage in suit, and placed them in the hands of Freeman M. Rowley, under an arrangement, or with the express understanding, that there was to be subsequently a meeting of the mortgagors, who might execute, or had executed, mortgages running to the railway company, at which meeting such mortgagors were to consider and deter mine whether or not they would deliver their respective obligations to the company in exchange for stock; but in no event were these securities to be delivered until this meeting was held and determination had. Freeman M. Rowley was not authorized to do any thing whatever with these securities, they being held by him as a mere custodian or depositary for safe-keeping. Rowley was at this time an indifferent person, though it appears that he was soon thereafter chosen a director of the company; and he was selected by all parties concerned in the arrangement as a suitable depositary of these securities until it was decided whether they should be delivered. It further appears that the mortgagors never had any meeting to determine the question of delivery, and that the defendant never, in fact, either himself delivered, or authorized Rowley to deliver, the note and mortgage to the company, but that they were delivered without his consent, knowledge or authority. These are undisputed facts in the case. The mortgage and note never having been delivered by the defendant, but having been surreptitiously put in circulation without his knowledge or consent, the single question is presented, whether they ever had any valid existence. The court below held that they were not valid obligations; and in this view we fully concur.