#### Keller, Appellant, vs. Schmidt, Respondent.

*November 7*

November *24, 1899.*

*Negotiable instruments: Fraud: Negligence of maker: Duress: Special verdict: Setting aside answers: Appeal: New trial.*

1. A German farmer, who could, not read or write English, executed a promissory note to lightning-rod agents for a sum which he himself had offered in settlement of their claim against him. He asked for no information as to the contents of the paper, although his son was present and could have informed him and he knew he was dealing with swindlers. *Held,*that he was guilty of negligence which would estop him from claiming relief against the note in the hands of a *bona fide*purchaser for value before maturity, even though the original claim, was tinctured with fraud and he did not intend to sign a negotiable note therefor.

2. The defense that a negotiable note was obtained by duress of threats of suit is not available against a *bona fide*purchaser for value before maturity.

3. Where the evidence is insufficient to sustain certain findings of a special verdict, a new trial will be awarded on appeal unless the question of the appellant’s right to judgment has been raised in the trial court by motion to set aside such findings and for judgment on the remainder of the verdict.'

Appeal from a judgment of the circuit court for Washington county: James J. Dick, Circuit Judge.

*Reversed.*

This action is to recover upon a promissory note for $190, given by the defendant to one J. D. Fleming or order, due in six months from May 3, 1898, payable at the express of*597fice in. Eichfielcl, Wisconsin, with six per cent, interest after due, duly indorsed, and field by tfie plaintiff before due. Tfie answer sets up that tfie note was given for lightning rods; that a contract to put up tfie rods was obtained by fraudulent representations; that after tfie rods had been put up tfie defendant was induced to sign the note by threats and duress, without knowledge of what fie signed, and upon tfie representation that tfie note was payable to Fleming and no other person; that defendant is a German, and cannot read or write English, and understands that language imperfectly, and did not know, that tfie. paper signed was a negotiable note.

A special verdict was returned by tfie jury substantially as follows: “ (1) That the note was signed by defendant and delivered to Fleming, tfie payee; (2) that the note was indorsed by Fleming, and plaintiff is tfie owner thereof; (3) that the note is due and unpaid; (4) that tfie plaintiff became tfie lawful owner of tfie note before maturity, in due course of business, in good faith, and for a valuable consideration; (5) that tfie terms of tfie contract of May 2d were fraudulently misrepresented to defendant, whereby fie was misled into signing it; (6) that tfie defendant did not intend to sign tfie note in question, but only intended to sign a paper obligation to pay Fleming, and no other person, the sum of $190; (7) that tfie defendant’s signature to tfie note was obtained by fraud; (8) that said note was obtained by duress; (9) that defendant was ignorant of tfie true character of tfie note; (10) that defendant was not guilty of negligence in signing tfie note; (11) that fie was not guilty of negligence in ascertaining tfie true character of tfie note; (12) that defendant has not ratified tfie note; (13) that tfie amount due on tfie note is $194.50.”

Plaintiff moved tfie court for judgment notwithstanding tfie answers to questions 5 to 12, inclusive, which was denied. A motion for a new trial was also denied, and judgment was *598ordered for defendant. From the judgment so entered this appeal is taken.

*Simon Gillen,*for the appellant,

to the point that the defendant was guilty of negligence, cited Citizens’ *Nat. Bank v. Smith,*55 N. H. 593; *Boaeh v. Ka/rr,*18 Kan. 529,26 Am. Rep. 788; *Douglass v. Matting,*29 Iowa, 498, 4 Am. Rep. 238; *Fayette Go. Sav. Bank v. Steffes,*54 Iowa, 214; *Bud-dell v. Fhalor,*72 Ind. 533, 37 Am. Rep. 177; *Buddell v. Dillman,*73 Ind. 518, 38 Am. Rep. 152; *Dinsmore v. Stim-bert,*12 Neb. 433; *Williams v. Stoll,*79 Ind. 80; *Oha/pmanv. Bose,*56 N. T. 137; *Fischer v, Yon Beh-en,*70 Ind. 19; *Mackey v. Peterson,*29 Minn. 300; *Baldwin v. Barrows,*86 Ind. 351; *Abbott v. Bose,*62 Me. 194,16 Am. Rep. 427; *Be-dell v. Herring,*77 Oal. 572, 11 Am. St. Rep. 307; *Qoetter v. Pidliett,*61 Ala. 387; *Gannon v. Lindsey,*85 Ala. Ill; *Bog-ers v. Place,*29 Ind. 577; *Greenfield's Estate,*14 Pa. St. 489; *DeOamp v. Mamma,*29 Ohio St. 467; *Phela/n v. Moss,*67 Pa. St. 59, 5 Am. Rep. 402; *Ort v. Fowler,*31 Kan. 478, 47 Am. Rep. 501; *Kellogg v. Curtis,*65 Me. 59; *Shirts v. Over-, john,*60 Mo. 305; 2 Am. *&*Eng. Ency. of law (2d ed.), 327, 328, note 3; *Bowlamd v. Fowler,*47 Conn. 347; *Yellow Medicine Go. Bank v. Tagley,*57 Minn. 391; *Ward v. Johnson,*51 Minn. 480; *Swift v. Tyson,*16 Pet. 1; Daniel, Neg. Inst. (3d ed.), § 850; *Baldwin v. Brieker,*86 Ind. 221; *German Ba/nk v. Muth,*96 Vis. 342; *Dodd v. Du/nne,*71 Wis. 578; *Kellogg v. Steiner,*29 Wis. 626.

*P. O'Meara,*for the respondent.

Bardeek, J.

This is one of that unfortunate class of cases in which a farmer has allowed himself to be overreached and imposed upon. It involves the consideration of two questions: Does the evidence support the finding that, without negligence on his part, he was induced to sign the note in suit, by fraud? Does the evidence warrant the finding that the note was obtained by duress?

*599The defendant is a German farmer, and is unable to read or write English, and understands it but imperfectly when spoken.’ On May 2,1898, he signed a contract for lightning rods to be put on his house and barn at the rate of forty-seven and one-half cents per foot. The contract was left with him. It is quite probable he did not fully know of its contents, yet he took no means to ascertain what it contained. On the following day, Eleming and one Davis came and put up the rods. It was ascertained that the rods, points, and braces, at the contract price, amounted to $226.07. This the defendant refused to pay, claiming that the price was only to be $11 or $12. After some parleying, offers were made to reduce the amount to $220, then $210, and finally to $200, but defendant refused each offer. At this stage of the transaction occurred the circumstances relied upon to establish duress. We give the defendant’s language :

“ And then he said if I wouldn’t settle with them I would never see them again, but others ivould come and I would have to pay $500 or $600 in that case. They went out, and attempted to go away; and then; before they left, Davis said if I wouldn’t settle with them others would come and it would cost me probably half my farm, or they would take away my stock; that their company was worth millions of dollars.” Defendant persisted in his refusal to settle, and the men started from the house to *'go*away. The defendant’s version of what followed is here given: “I called them back, and said I would settle with them. That is what I said. . . . When I saw I had dealing with swindlers, I made the offer of $190 just before Eleming and Davis started to leave. ... I was satisfied to settle with them for $190 to get rid of them. ... I settled with them to prevent trouble. The trouble I wanted to prevent was the lawsuit. I was afraid. I didn’t know what I was doing. The reason I was afraid was because I was dealing with *600swindlers. The only thing I was afraid of was that I thought, they would sue me if I wouldn’t settle. That is the only thing I was afraid of. I was afraid of nothing else. . . . It is the fact that the only reason why I called them back was that I was afraid they would sue me, and get judgment against me for the lightning rods, and levy on my farm and stock by execution.”

In detailing the circumstances under which the note was-signed, the witness stated: “ After I had signed the paper, Eleming said I should pay only to him and no one else; that he was to take the money. . . Eleming said I shall pay to no one else but him. They said nothing as to who the-, paper was payable to. After I signed it, Eleming said, ‘ Don’t pay to any one but him.’ They said that the paper was made payable'-to Fleming; so Eleming told me. When Eleming said that, the paper was on the table. At that time the boy or the girl were signing it as witnesses. That was said the first time when I was to sign the paper. I don’t think I have signed it or not. . . . When the-paper was on the table, before I had signed it, Eleming; came to the table and said, ‘You must not pay to any one but to me; I am to get the money for the paper.’ I then-signed the paper, after that.” He further said: “I don’t know what was in that paper. Eleming and Davis didn’t-read the paper to me. No one read it to me. No one told, me what was in it.” On cross-examination, he testified that he knew what it was for; that it was to satisfy the lightning-rod matter, so that he would not have any more trouble or a lawsuit about it. In his examination before trial, he testified that he knew that the paper signed by him was. to secure the payment of $190 in six months; that it was to-be paid to Eleming at the express office in Richfield; that it was not to bear interest until due; and that it would bear-interest after due at six per cent.

We have no hesitancy in saying that, under the circum*601stances in proof, the finding tbat the note in suit was secured by fraud, without negligence on the part of the defendant, cannot be sustained. Even though it be admitted that the original contract was tinctured with fraud as alleged, it was left in the possession of defendant after signing, and he took no means to. ascertain its contents. His son could read English, yet he was. not called upon to interpret it. Before the defendant executed the note, he had full knowledge that the amount claimed was largely in excess of the amount he understood was to be due under the original contract. With that knowledge he called the men back, and offered to settle for $190, in order to avoid further trouble. He repeatedly testified that it was after he had signed the note that Fleming said the money was to be paid, to him only. But, whether it was before or after he signed the note, the evidence shows that he was clearly guilty of negligence in signing it. It is not claimed that he was misinformed as to its contents. He asked for no information, on the subject. His son could readily have given him all that he desired. He'knew that he was dealing with swindlers, and common prudence demanded that he should ascertain the-nature and terms of the instrument he was about to sign. Failing in this regard, he was guilty of such negligence as to estop him from claiming relief against the note in the hands of an innocent third party. The evidence being without dispute, and the inferences to be drawn being in no doubt, it ivas the clear duty of the court to have set the verdict aside in that respect. The cases of *Walker v. Ebert,*29 Wis. 194, and *Kellogg v. Steiner,*29 Wis. 626, are expressly based upon absence of negligence, and upon fraud and misrepresentation equivalent to constructive forgery. Similar circumstances do not exist in this ease. The following cases illustrate the different phases of negligence that will prevent a recovery: *Citizens’ Nat. Bank v. Smith,*55 N. H. 593; *Roach v.*Karr, 18 Kan. 529; *Douglass v. Mat*
      *602
      *ting,*29 Iowa, 498; *Ruddell v.*Fhalor, 72 Ind. 533; *Dinsmore v. Stimbert,*12 Neb. 433; *Chapman v. Rose,*56 N. Y. 137; *Mackey v. Peterson,*29 Minn. 300; *Bedell v. Herring,*77 Cal. 572.

On the question of duress there is an entire absence of evidence to support the jury’s conclusion. The only fact upon which duress can be predicated is the threat that if he did not pay or settle it might cost him half his farm. It seems quite unnecessary to discuss this question, as this court has recently determined, in a case where legal duress was shown, that such a defense was not available against the *bona fide*holder of a note before due, for value. *Mack v.*Prang, *ante,*p. 1. It being affirmatively established that the plaintiff is such holder, the finding of duress is no obstacle to a judgment in his favor.

After verdict, the plaintiff moved the court for judgment notwithstanding the answers to the questions upon the subject of fraud and duress. No motion was made to set aside the answers to these questions and for judgment upon the remainder of the verdict, but upon the denial of the first motion the plaintiff moved the court to set aside the entire verdict and for a new trial. It is urged that, in view of the conclusion we have arrived at, we should reverse the judgment and remand with directions to enter judgment for plaintiff. The proper practice in the court below would have been to have moved the court to set aside the parts of the special verdict to which we have referred, and for judgment on the remainder, as pointed out in *Conroy v. C., St. P., M. & O. R. Co.*96 Wis. 243, and cases therein cited.' No such motion having been made, and the possibility that new evidence may be produced by the defendant, renders it necessary to send the case back for a new trial.

, *By the*Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.