Andrews v. Robertson

The view we take of this, case renders it unnecessary to consider the question of whether the instrument sued on ever became the promissory note of respondent. Conceding that it did, it is not enforceable in the hands of plaintiffs if the condition on which it was delivered to their agent, Eorsting, is binding upon them, upon the ground that they are not bona fide holders of the paper. What that condition was is too clear for controversy. It was competent to show that the word “ duebill,” found in *337the .receipt given by Forsting, referred to the note, upon the plainest principles of evidence; so there can be no question but that the delivery of the note was made upon condition that if respondent elected to and did return the bonds as not satisfactory, within thirty days, it should be delivered back to him.

It is said appellants became the lona fide holders of the note because they.paid full value therefor to their principal without notice of the condition upon which it was taken for them by Forsting. True, they did not have actual notice of such condition, but by well-settled .principles of law they had constructive notice, if what Forsting did was within the actual or apparent ■ scope of his agency; and if it was not, they are chargeable just the samo and are bound accordingly, because they insisted on reaping the benefit of his transaction after having knowledge of the facts. Upon receiving such knowledge, if they did not intend to ratify such transaction, they should have promptly repudiated it and offered to return the note. McDermott v. Jackson, 97 Wis. 64; Wilson v. Groelle, 83 Wis. 530; Perkins v. Boothby, 71 Me. 91; First Nat. Bank v. Oberne, 121 Ill. 25; Mechem, Agency, § 167.

The further claim is made that plaintiffs are bona fide holders of the paper because they purchased it from their indorsee, who was an innocent holder thereof, paying full value therefor, and that the trial court erred in refusing to permit proof of such repurchase for value. In that, they invoke the familiar common-law rule, which has recently been added to the statute law of the state, sec. 1676 — 28, ch. 356, Laws of 1899, that the holder of commercial paper may recover on the strength of the title of a precedent innocent holder, regardless of knowledge on his part of fraud which would defeat it in the hands of the payee named therein. Verbeck v. Scott, 71 Wis. 59, 64. That rule is stated in the books, particularly in judicial opinions, generally in such a *338way as to lead one astray who is not familiar with the law on the subject, as to the extent of its application. It is not a universal rule. It does not apply to a case like this, where the payee of the paper, being so circumstanced at the start that he cannot recover thereon, transfers it to an innocent third party for value and subsequently purchases it back for value.y Under such circumstances the payee cannot lean for Support on the innocence of his vendee. His position is the same when he comes into possession of the paper the second time as when he first possessed it. One would say that must be the law without reference to authority; otherwise a person might become possessed of a promissory note of another by the grossest of frauds and by selling it to an innocent third person for value and subsequently repurchasing it enforce the same against the maker. The law contains no such open door as that for the successful perpetration of fraud. Tod v. Wick Brothers & Co. 36 Ohio St. 310; Sawyer v. Wiswell, 9 Allen, 39; Kost v. Bender, 25 Mich. 518; Vorce v. Rosenbery, 12 Neb. 448; Chariton Plow Co. v. Davidson, 16 Neb. 374; Camp v. Sturdevant, 16 Neb. 693. We are unable to find that the rule contended for by appellants has ever been applied to a case like this. If authority to that effect could be found, we would be compelled to reject it as out of harmony with the settled law on the subject and contrary to every principle of justice upon which the law is founded.

By the Court.— The judgment of the circuit court is affirmed.