116 Wis. 471 | Wis. | 1903
The plaintiff seasonably objected to the admission of any evidence under the answer for the reason that it states no defense, and the correctness of the ruling upon "that objection is the first question for consideration. The •answer is set forth at length in the statement of the case. It is sufficient here to say that it alleges, in effect, (1) that prior .to the giving of the note in suit the defendants, to the knowl
The question presented is whether these allegations state •any defense. The note in suit, the execution of which is admitted, is a simple promissory note, signed by individuals, in the usual form, except that it contains an option allowing payment to be made in lumber at going rates. It is a plain, unambiguous, and complete document, (when construed with the accompanying agreement), which leaves nothing for explanation. It contains no doubtful or elliptical expressions, justifying the introduction of proof of surrounding facts and circumstances in order to comprehend its meaning. There is nothing uncertain, nothing to explain.' The first part of the ■answer seems to be formed upon the idéa that the legal effect of this plain and unambiguous personal obligation can be •changed so that it will become an obligation of a corporation not then in being, by proof that all the parties knew at the
As to the remaining allegations of the answer, it seems quite doubtful upon what theory they were framed, or what defense they were supposed by the pleader to state. Apparently, it was thought that they might be construed to state either an agreement of novation of debtors, or an agreement of assumption of the debt by the corporation, to the knowledge of the plaintiff, by which the defendants became sureties only therefor, and were released by negligent failure of the plaintiff to collect the debt of the new principal. Certainly it cannot be argued that any other defense is stated, or even suggested, by this part of the answer. The theory that a novation of debtors is stated must at once be rejected. Novation of debtors means the substitution of one debtor for another. It can only take place by mutual agreement, to which the creditor, the old debtor, and the new debtor assent, and by which the old obligation is extinguished, and a new and valid obligation is created, and takes the place of the old one. Lynch v. Austin, 51 Wis. 287, 8 N. W. 129; Spycher v. Werner, 74 Wis. 456, 43 N. W. 161; Lane v. Magdeburg, 81 Wis. 344, 51 N. W. 562. While it is alleged in the answer that the new corporation agreed to pay the note, it is nowhere
It seems equally plain that the remaining supposed defense, namely, that the defendants had become sureties, and were discharged by neglect of the creditor to collect of the new principal when such collection could have been easily made, is not stated by the answer. If the new corporation purchased the mill of the defendants, and, as part of the consideration therefor, agreed to pay the debt to the plaintiff, it is probably true that the defendants thereby became, as between themselves and the corporation, surety only for the payment of the debt; and it may also be true that, in case the fact of such assumption was known to the plaintiff, it would owe to the defendants the duty of having no dealing with the new principal which would jeopardize the surety’s position. Gates v. Hughes, 44 Wis. 332; Bank v. Johnson, 111 Wis. 372, 87 N. W. 237. Conceding all this to be true, however, there are fatal deficiencies in the answer, in failing to state that the corporation ever assumed to pay the_ debt for a consideration of any kind, and also in failing to state that the plaintiff was ever informed that such an agreement had been made. In the absence of these facts, the plaintiff owed the defendants no duty even to attempt to collect its debt of the corporation, because, as to the plaintiff, the defendants were still principals, and bound to pay the debt at all'hazards.
Neither the fact that the corporation agreed with plaintiff to discharge the note in lumber, nor the fact that the plaintiff presented a claim in the assignment proceedings, operates to relieve the defendants of liability. The plaintiff was entitled to get its pay from any one who was willing to pay, and its efforts to that end, in the absence of knowledge of the assumption of the debt, for a consideration, by the corporation, did not prejudice its rights against the original debtors.
While tbe exceptions reserved upon tbe trial and urged in this court were very numerous, and have not been treated in detail, it is believed that tbe foregoing general remarks are •entirely sufficient to cover all tbe material questions presented on tbe appeal.
By the Court. — Judgment reversed and action remanded for a new trial.