¶1The note in question passed into the hands of an innocent holder for value in due course before due and was transferred by .that holder to the plaintiff. There is no' evidence that the plaintiff was a party to any fraud or illegality affecting the instrument, and hence, under the express terms of the negotiable instrument law, he pos*71sesses all the rights of the holder in due course. Secs. 1676 — 22 and 1676 — 28, Stats.
¶2A holder in due course holds the' instrument “free from any defect of title of prior parties, and free from any defenses available to prior parties among themselves,... except as provided in sections 1944 and 1945 of these statutes, relating to insurance premiums, and also in cases where the title of the person negotiating such instrument is void under the provision of section 1676 — 25 of this act.” Sec. 1676 — 27, Stats.
¶3This section entirely cuts off the defense of fraud, so that it becomes unnecessary to consider it. The defendants, however, claim that the note was an integral part of a gambling or wagering transaction and hence was void under sec. 4538, Stats., which makes absolutely void all contracts or notes given for money wagered or staked on the result of a game under any name whatsoever.
¶4It is argued that the provision of the contract by which Price agreed that if 0.75 per cent, of the year’s sales did not amount to $298 he (Price) would pay the deficiency in cash, amounts to a bet or wager and is within the prohibition of the gaming statute.
¶5We are unable to agree with this contention. The agreement is unusual, certainly, but in our judgment not immoral or illegal. In effect it is simply a guaranty that the defendants’ business will be increased to a certain figure if they will purchase the prizes and advertising matter and adopt the trade-increasing program offered by Price, coupled with an agreement that, if the increase does not take place, Price will take a less sum for the prizes, advertising matter, and services furnished by him.
¶6The question whether this latter defense would be of any avail as against a holder in due course seems doubtful under the provisions of sec. 1676 — 27, Stats., above quoted. Arnd v. Sjoblom, 131 Wis. 642, 111 N. W. 666. It is un*72necessary, however, to pass upon that question in this case, and we express no opinion on it.
¶7By the Court. — Judgment affirmed.