The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1862-03-27
Supreme Court Decision.

- u 4 Ut IL AtLy. IoI ldlu(lIl w. I1EA ID ana
+. W. EVANS, Attys. for Defendants.
The Defendants claimed by answer that William
Golf, the husband Of Betsey D. Golf, for the pur-
pose OF procuring the note and mortgage to be
made, stated that she had deposit in the Keno
sha County Bank, 5000, which she would lend to
johnson, upon the note and mortgage as the con-
sderaton; when in truth and fact she had not any
money On deposit there; and no money was ever
received by Defendants, as consideration for the
note and mortgage, Also, that the mortgage was
never acknowledged by them, &c. Also, that
Plaintiff had no interest in the note and mortgage
and that the assignment was made for the purpose
OF defrauding Defendants from their lawful de-
fence, &c.
The testimony was principally taken before
Referee, Mr.. Golf being examined fifteen days.
1t appeared that Golf was married in New Hamp
shire some l2 years since That an antenuptial
contract was duly executed, securing to Mrs Golf
her property, of several thousand dollars -Joha
GCff being trustee for that purpose, and he had
appointed William Golf, her husband, his agent
in the trust fund, With that fund, land had been
bought Tor her, house built, improvements made,
money loaned, &C., and January % 1856, 5000 Of
her money was deposited it in the Kenosha County
Bank Ii the fall of 1855, johnson ~ Golf formed
q copartnsrship in keaosha, to manufacture lum-
| Der at ManitOwoc. They built a steam saw mill
there, and borrowed $3.50 of the Bank to pay for
| an engine, &c, which fell due in January, 1856.
The firm purchased Goods of Simmon & Son. TO
amount OF $54. johnson gave the Company note
to the Bank, and to Simmons g. Son, and with the
$500 OF Mrs. Gof' money then in Bank, and 9TH
or funds of GoH s. Golf took up and cancelled
these notes. January %, 1856
Johnson claimed that the $3.50 was merely ex.
tended by new note given in the Company name
| by Golf, Of which there was no evidence.
| Johnson also testified in open Court, that in
March 1856, he received letter at Manitowoc,
from Mr., Golf, with the 5000 note i'll it, saying that
his wife had 5000 in the Kenosha County Bank,
and if l would sign and return the note could
have the money. And signed it, and sent it back
to kenosha by mail, and put the letter in chest
unlocked, and have not seen it since, but have
made thorough search for it. That being in Ke-
nosha, April 3D., the mortgage signed, and Golf
took 1t, and be first called Phillips the Teller
of the Bank, the latter part of April who told him
there was money in the Bank for him, &c.
johnson also testified that he never received
County Bank, or any other person. as a consider
alton of the note and mortgage any money, or
property or other thing of value
81 Golf testified that the consideration of the note
and mortgage money, that he had used in pay
ing the debts of the firm, by express agreement
with johnson, that if he used his wife's money for
, that purpose, he johnson would give to her his
note and mortgage; and that the $500 of her mon
ely depositedin the Bank, was so used. That John
) son knew it, and gave the mortgage as promised,
and he never heard of any dissatis faction about it,
until the next fall and after Johnson had sold out
his interest i'll the company to his son, leaving the
partnership debts OF over $1,000, unprovded for
which debts were still unpaid
The Circuit Court decided the note and mortgage
were given without consideration, and that Kim
ball held them as collateral security for debt due
him from the firm of ohnson 81 Golf and entered
Judgment for Defendants. From this decision the
, Plaintiff appealed, and the Supreme Court after
hearing j. j. Petit Counsel for Appellant, and
O. S. Head, Counsel for Respondent, gave its
opinion, as follows
SUPREME C1URT.
julius II. Kimball, Appellant, agst. Isaiah
Johnson and others, Respondents.
The questions lHFOlNeu III blliS case are Dfln
. cipally of fact, and upon them, we are unable to
concur with the circuit judge. The testimony
of the Witness William Golf, if he is to be be.
Iieved fully sustains the plaintiffs right to re-
} cover We JeLieTe him. He testifes with fair
ness and candor, and with no attempt at pre-
> varicaton or concealments. His history of the
transaction is rational, consistent and bears
throughout inherent evidence Of its truthfulness
Tt il corroborated,i lin the most material points by
other proof, and particularly by the documentary
evidence which is more certain and reliable in
its character, than the oral evidence of the wit
ness. Even the books of the partnership, when
seen through the mutilations and changes of
the defendant, Johnson, show that the money
was borrowed by him, and used for the benefit
of the firm of johnson & Golf. The separate
property of Mrs. Golf, the antenupti contract,
and appointment of the trustee, and COTS agen-
CIV in the management of the property, are es-
tablished beyond any reasonable doubt. The
deposit book of Mr. Golf, in the handwriting OF
the teller of the bank, and the entries in the
books of the bank, show in manner which pre-
cludes all debate, that there was $500 deposited
in the bank, and set apart as the money of Mrs
Golf 1t is impossible to suppose, that these
hooks were prepared at that time, with a view
TO auv anticipated effect which they might have
anon this litigation. The same books show with
equal cearness aud certainty, that the 5000
went towards the payment OF the $3.50 bank
note and the S54 note Of Simmons & Son The
pretense that Golf paid the check, with the note
of the company, or that he obtained the money
by giving such a note, is entirely unsupported
by evidence. When we consider the nature and
amount of their business, and that johnson was
familiar with it, and in possession of the books
II is incredible, that Golf should have realized
such a sum upon the note of the firm, and vet
that johnson should be unable to search out,
and establish the fact No bona tide effort was
made to prove it, and we do not believe that
the claim was put forth from an honest coauic-
! ton, that such was the case.
! Il is true, that some questions are put to Golf
upon that hypothesis, but we cannot regard them
| as having been asked in good faith, If thew
were his answers completely negative the as
sumption, aud explain the subsequent transac-
tons with the bank as fully as could be expect
ed under the circumstances. In this as in most
other respects, he is supported by the plaintiff,
Kimball, who testifies positively that no money
was bOrreSed from the bank at that time nor
for considerable time afterwards. If the mon
| ey was borrowed elsewhere it would not have
been a secret, which was past finding out. The
| notes taken up were produced with the marks
of cancellation upon them, and we think it was
concluSiyely shown that $500 of Mrs. COTS
money, was appropriated in the manner stated
| by Mr.. Golf.
| The next question is, whether it was thus ap-
propriated with the knowledge, and consent Of
| the defendant Johnson-and as SO much money
contributed by him towards discharging the in
debtedness Of the firm, with the understanding
that he was to execute the note and mortgage to
secure its repayment to Mrs. Golf. We haze no
doubt that 1t was If there was no other evil
dence before US, but the note and nortgage,and
the fact that the 5000 was applied, the test- |
mony of the defendants, johnson, alone would |
convince US, that they were executed, and de- |
liyered, to secure the payment oft He claims |
that he needed the money in his own private |
business, and that he executed and delivered
the note and the mortgage, with the expectation
that it would be-advanced to ham, for that pur-
pose; which was never due. His relation OF
the affair, is altogether too strange, ana unac-