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The First National Bank of Milwaukee vs. Finck.

11 Oreg. 154; Wilson v. Fairhaven Bank, 7 Allen, 270; Hanson v. Manley, 72 Iowa, 48.

WINSLOW, J. The appellant's contentions are (1) that he became a surety only for the payment of the joint notes, and that he was discharged because the bank allowed Meyer to withdraw and use one half of the assets of the Globe Trading Company, whose stock was pledged for such notes; (2) that the $41,000 note was taken in payment of the joint notes, and extinguished them; (3) that the judgment upon the $41,000 note was a bar to an action on the joint notes; (4) that, in any event, the $10,000 made upon execution against Meyer should be applied pro rata on the joint debt and on the individual debt, and could not be applied by the plaintiff on the individual debt alone; (5) that the proceeds of the 1,200 shares of Globe Trading Company stock should be applied upon the joint debt alone.

1. The main difficulty with the first contention is that Finck never became a surety so far as the bank was concerned, but remained a joint principal. As between him and Meyer, when Meyer assumed, for a consideration, to pay the debt and hold him harmless therefrom, Finck became a surety only; but the bank never consented to any change of liability, and received no consideration for such a consent; so it seems perfectly plain that, as between Finck and the bank, Finck remained a principal. But it is argued that the evidence shows that the bank, without Finck's knowledge, consented that Meyer might sell his half of the assets of the Globe Trading Company and invest them in his business, thus reducing the collaterals pledged for the joint debt by one half, and that by this conduct the bank is prevented from enforcing its claim against Finck, especially when it has levied on and sold Meyer's stock of goods, into which the assets had gone. If Finck was still a principal and not a surety, it is difficult to see how any such result could fol

The First National Bank of Milwaukee vs. Finck

low even if the bank consented to the conversion of Meyer's half of the assets of the Globe Trading Company; but the cashier of the bank testifies positively that the bank never knew of nor consented to this use of the assets, and the court neither made nor was requested to make any finding on this point. If the appellant desired a specific finding on this contention, he should have requested it. Barry v. Schmidt, 57 Wis. 172. There is ample evidence to support a finding that the bank did not consent to the acts of Meyer, and in such case a judgment will not be reversed for failure to make such specific finding. Williamson v. Neeves, 94 Wis. 656.

2 and 3. The court found that the $41,000 note of Meyer was taken as collateral only to the joint notes and Meyer's previously executed individual notes. There is some conflict in the evidence on this point, but there was sufficient evidence to sustain the finding, and hence we cannot reverse it. The taking of Meyer's note was certainly not a payment of the debt, because there was no express agreement that it should be a payment. First Nat. Bank v. Case, 63 Wis. 504. No reason is perceived why one of two joint debtors may not give his own note as collateral security for the joint indebtedness. Paine v. Voorhees, 26 Wis. 522. If the new note was simply collateral, as found by the court, then it is familiar law that the taking of it does not affect any rights of the creditor upon the original debt; nor does the prosecution of the collateral to judgment affect the right of action upon the original debt, at least until satisfaction is obtained. Colebrooke, Collateral Securities, $ 109.

4. A more difficult question arises as to whether the bank could apply the $10,000 made upon its execution against Meyer upon Meyer's individual indebtedness, and leave the joint notes unpaid. If this had been a voluntary payment made by Meyer, the bank could, of course, make the appropriation as it chose in default of any appropriation by Meyer; but it is claimed that where money is collected by action

The First National Bank of Milwaukee vs. Finck.

upon two different claims, and the amount realized is insufficient to discharge both claims, there is no opportunity for appropriation by the parties to either claim, but the law applies the proceeds ratably upon both claims. There is much authority in support of this contention. The reason sometimes given for the rule is that it is a payment made, not by the party, but by process of law, and presumably against the will of the party, and that it is not in the power of the debtor to make the appropriation, and that it would be unjust to allow the creditor the power of making it when the debtor has no such power; hence the law, having coerced the payment upon all the claims embraced in the judgment indiscriminately, will apply the payment ratably upon each. The following cases support this doctrine with greater or less directness: Bridenbecker v. Lowell, 32 Barb. 9; Blackstone Bank v. Hill, 10 Pick, 133; Merrimack Co. Bank v. Brown, 12 N. H. 320; Cage v. Iler, 5 Sm. & M. 410; Orleans Co. Nat. Bank v. Moore, 112 N. Y. 543; Cowperthwaite v. Sheffield, 1 Sandf. 416, affirmed 3 N. Y. 243. So it has been held, apparently on the same principle, that where a creditor proves two claims of different character against an insolvent estate, and receives a dividend, the law will apply the dividend to both claims ratably. Raikes v. Todd, 8 Adol. & E. 846; Commercial Bank v. Cunningham, 24 Pick. 270; Richardson v. Kidder, 3 Dem. Sur. 255. There are, however, wellconsidered cases holding that the creditor may, in the absence of appropriation by the debtor, apply moneys received upon foreclosure of collaterals given by the debtor to secure two or more debts upon the otherwise unsecured debt, on the ground that he is entitled to the benefit of all his securities. Small v. Older, 57 Iowa, 326; Wilson v. Allen, 11 Oreg. 154; California Nat. Bank v. Ginty, 108 Cal. 148; Mathews v. Switzler, 46 Mo. 301. See, also, Wood v. Callaghan, 61 Mich. 402; Morrison v. Citizens' Nat. Bank, 65 N. H. 253. Such was the holding of this court in Northern Nat. Bank

The First National Bank of Milwaukee vs. Finck.

v. Lewis, 78 Wis. 475, in the case of a chattel mortgage given to secure several notes, part of which were secured and part unsecured, as against indorsers of a part of the notes. It will be noticed that all of the cases in which the doctrine of ratable payment has been applied were cases in which the rights of mere sureties were in question; and the court in those cases seems to have considered their equities as superior to the rights of the creditor to enforce full payment of his debt. In the present case, however, Finck was, as to the bank, not a surety, but a principal. He was absolutely liable for the whole debt of $17,000, and we are unable to see that the bank owed him any duty as to application of proceeds of collaterals pledged by his joint principal. The bank held but one security for the payment of the notes of $24,000, namely, the name of Meyer, and two securities for the payment of the $17,000, namely, the names of both Meyer and Finck; and it is entitled to payment in full of both claims. It is not seen that there is any equity on the part of Finck which entitles him to demand that collaterals taken from Mėyer alone should be applied in whole or in part on the joint debt, rather than on Meyer's individual debt. We are not inclined to depart from the rule laid down in the case of Northern Nat. Bank v. Lewis, supra; nor can we see any substantial difference between a payment realized upon sale of property on a chattel mortgage given to secure several debts and a payment realized upon execution on a judgment embracing several debts; and we therefore hold that the amount realized by the bank on the execution was rightly applied on the individual notes of Meyer.

5. As to the Globe Trading Company stock, there was no dispute on the trial but that it was pledged for the payment of the joint debt of $17,000, and for that alone. This was testified to by Meyer and Finck, and by the cashier of the bank. It having been pledged to secure a specific debt, its proceeds can only be applied to the payment of that debt.

Board of Education of South Milwaukee vs. State ex rel. Reed.

Hence it was error to direct that the proceeds of the sale of half of that stock should be applied in payment of the individual indebtedness of Meyer. It should all be applied upon the joint indebtedness.

By the Court.— That part of the judgment providing for the application of the proceeds of sale of 600 shares of Globe Trading Company stock on the individual indebtedness of Meyer is reversed, and the balance of the judgment is affirmed, and the cause remanded with directions to modify the judgment in accordance with this opinion. No costs are to be recovered by either party, except that the fees of the clerk of this court are to be taxed and paid by the respondent.

THE BOARD OF EDUCATION OF THE CITY OF SOUTH MILWAU

KEE and another, Plaintiffs in error, vs. THE STATE EX
REL. REED, Defendant in error.

September 1- September 20, 1898.

Public schools: Reinstatement of teacher: Mandamus: Officers.

1. A teacher employed by a school board under a contract containing

the usual stipulations not an officer of the district, but is a mere employee of the board, and the relations and obligations between them are purely contractual. For any breach of the contract by the board, therefore, the remedy by an ordinary action at law is plain and adequate, and mandamus will not lie to compel the board

to reinstate him or pay his salary. 2. Mandamus is not the proper proceeding in which to test the ques

tion of the relator's title to an office which another is occupying under claim of right or titie.

Error to review a judgment of the superior court of Milwaukee county: J. C. LUDWIG, Judge. Reversed.

The proceeding sought to be reviewed by the writ of error in this case was by alternative mandamus against the

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