#### W. H. Kiblinger Company, Appellant, vs. Sauk Bank, Respondent. Same, Respondent, vs. Same, Appellant.

*April 12*—

April *30, 1907.*

*Action, tort .or contract? Pleading: Foreign corporations doing 'business in state: Preach of contract to return note sent for collection: Damages: Costs.*

1. A complaint alleging an agreement by defendant bank to present a note for payment and in case of its nonpayment to return it to plaintiff on a certain date, apd that defendant “failed and neglected to do so,” is *held*a complaint on contract and not one for negligent omission of duty imposed by law.

2. A complaint showing merely that plaintiff, a foreign corporation, sent a note to defendant bank in this state for collection, with ‘instructions to return it if not paid by a certain date, does not show plaintiff to have been an unlicensed corporation doing business in this state, so as to render the complaint demur-rable.

3. In an action for breach of contract in failing to return a note to plaintiff at a certain time, the evidence — showing, among other things, that plaintiff had thereafter exhausted the resources of the maker of the note in the collection of later demands against him — is *held*to sustain a finding by the jury that there was no reasonable probability that the maker would have paid the note or any part of it if the bank had returned the note as agreed.

*5964. For breach, of an agreement by a bank to return to the holder at a certain time a note sent to the bank for collection, the holder was entitled to recover nominal damages although it was found that even if the note had been returned there was no probability that the maker would have paid it.

5. The amount of a note being in excess of the jurisdiction of a justice of the peace, the holder, suing for such amount as damages for breach of a contract by a bank to collect or return the note, was entitled to bring his action in the circuit court and, on recovery of nominal damages, to recover costs also.

'Appeaxs from a judgment of tbe circuit court for Sauk county: E. Rat SteveNs, Circuit Judge.

*Affirmed.*

Cross-appeals from a judgment for nominal damages and costs in favor of tbe plaintiff and against tbe defendant.

For the appellant there were briefs by *Dithmar & Garow,*and oral argument by *J. W. Carow.*

*G. Stevens,*for the respondent.

Timlin, J.

Tbe action as shown by tbe complaint is on contract. It avers that tbe defendant for a valuable consideration undertook and agreed to present tbe note in question to tbe maker for payment, and in case of nonpayment to return it to tbe plaintiff on February 5, 1902, and then avers that defendant failed and neglected so to do, whereby’ tbe sum due and payable on said note was wholly lost to the plaintiff.

It is always a close question whether a complaint is for breach of contract or negligent omission of duty imposed by law where tbe same act would constitute a breach of tbe contractual obligation as well as of tbe legal duty. Tbe aver-ments of tbe contract obligation taken together with tbe words “failed and neglected to return tbe same to tbe plaintiff as requested” determine the character of this complaint as one upon contract and not one where negligent omission of duty imposed by law is relied on. In tbe latter case tbe act upon which liability is predicated is charged to have been negligently done. In tbe former that tbe party bounden “failed *597and neglected,” that is to say “omitted,” to perform. Winslow’s Forms, Nos. 903, 904; *Van Oss v. Synon,*85 Wis. 661, 56 N. W. 190; *Lane v.*Frawley, 102 Wis. 373, 78 N. W. 593; *Casgrain v.*Hamilton, 92 Wis. 179, 66 N. W. 118.

The oral demurrer to the complaint on the ground that the plaintiff is shown thereby to have been an unlicensed foreign corporation doing business in this state was not well taken because the complaint shows no more than that the plaintiff, a foreign corporation, sent a note to defendant bank for collection, with instructions to return the same if not paid by February 5, 1902. *Catlin & P. Co. v.*Schuppert, 130 Wis. 642, 110 N. W. 818.

The jury found upon special verdict that there was no reasonable probability that the maker would have paid the note or any part of it had the hank performed its part of the contract. It is said that this finding is not supported by evidence. But it appeared without contradiction that on and between April 9 and April 29, 1902, -the plaintiff delivered to Rieser, the maker of the note in question, other merchandise to the amount of $937.25, in pursuance of a contract made the fall before, and that the note in question was dated April 23, 1901, and due September 1, 1901, and for the sum of $329.25. It was on January 23, 1902, sent to the defendant bank with instructions to present the same to the maker, Louis Rieser, for payment, and if not paid by February 5, 1902, to return the same to the plaintiff. The defendant omitted to return the note to the plaintiff and the plaintiff omitted to make demand therefor. About September 22, 1902, an agent of the plaintiff came to Sauk City with apparent authority to collect from Rieser for the sales of April, 1902. Rieser mortgaged his homestead, which contained something more than one fourth of an acre, was within the limits of an incorporated village, and worth altogether about $1,200, to the defendant bank for $815, and out of the money thus raised paid the plaintiff’s agent on or about September .22, 1902, $700 to apply on the said purchase, and paid the *598bank' about $115 on other demands, first offering to the agent, however, to apply part of the $700 in payment of the note in question. The agent answered that he had no account of that note and no authority to collect it, and insisted on Rieser applying all the money on the later account. Rieser also gave this agent some notes of third persons belonging to Rieser to cover the balance due on the sales made to Rieser by the plaintiff in April, 1902. Rieser was adjudicated a bankrupt on March 19, 1903, and outside of this mortgaged homestead property had no property liable to seizure on execution and very little property of any kind, and was not able to turn over anything to his assignee in bankruptcy; It was also in evidence that at the time Rieser bargained for the goods of the plaintiff which were delivered to him in April, 1902, the plaintiff’s agent informed Rieser that the plaintiff would take care of the note in question awhile and not press Rieser for payment of it, if the latter would give an order for these goods, and Rieser then told this agent that he could not do anything for the plaintiff on that note until the next summer. In considering whether there was evidence to support the verdict wé must eliminate from Rieser’s resources the money and property which the plaintiff secured from him on September 22, 1902. The plaintiff could not come in on this later demand and strip Rieser of his resources for payment and then hold the defendant liable because the defendant might have collected out of these same resources or might have returned the note and enabled the plaintiff to collect out of these same resources. 1 Sutherland, Dam. (3d ed.) §§ 88, 89, 90; *Franklin v. Smith,*21 Wend. 624; *Lawrence v. Porter,*26 L. R. A. 167. Taking this out of Rieser’s resources there was ample evidence to support the verdict of the jury notwithstanding the burden of proof was upon the defendant to show that there was no reasonable probability that the note would have been paid and that it could not have been collected had it been returned. Hence the circuit court did not err in refusing to direct a verdict for the amount of this, *599note in favor of the plaintiff nor in refusing to change the answer of the jury to the special verdict from “no” to “yes.”

TJpon the defendant’s appeal it is claimed that the judgment should be reversed because the court awarded nominal damages and costs to the plaintiff. There was a breach of the contract on the part of the defendant in failing to return the note on. February 5, 1902. Eor this breach the plaintiff was entitled to nominal damages at least. The evidence heretofore referred to, of the insolvency of Eieser and his attitude toward the note in question and the improbability of his paying the note in question, went only to show that the plaintiff was not damaged to the extent of the amount due on the note or any part of that amount, but was not otherwise defensive matter. The note being in excess of the jurisdiction of a justice of the peace, the plaintiff, suing for the amount thereof as damages for breach of a contract to collect or return, was entitled to begin an action in the circuit court and to recover costs. Sec. 2918, Stats. (1898), and cases in note.

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