219 Wis. 552 | Wis. | 1935
Plaintiff’s cause of action, as alleged in its complaint, is to recover $8,295 on a guaranty signed on December 29, 1933, by defendants, who were some of the stockholders of the State Bank of Random Lake, a Wisconsin banking corporation. That guaranty was given by the defendants to the plaintiff in consideration of the signing by the latter, as the holder of deferred certificates issued by the
On July 5, 1932, the defendants had likewise given a written guaranty to the plaintiff under which they had agreed to pay those deferred certificates; and prior thereto, on December 29, 1930, the defendants had given plaintiff their bond in the penal sum of $20,000 to guarantee that the State Bank of Random Lake would account to the plaintiff for all moneys deposited by it in that bank. Upon receiving that guaranty, on December 29, 1930, plaintiff deposited $20,000 at that bank; and it had that deposit there when it signed the first stabilization agreement under which it received deferred certificates for that $20,000 deposit. Payments made to it upon those certificates had reduced the balance owing thereon to $8,295 at the time of the second stabilization agreement; and that amount was unpaid under the participating certificates issued to plaintiff under the latter agreement, when the defendants defaulted under their guaranty' of December 29, 1933, by failing to pay those certificates on demand. Defendants denied liability in an answer to which plaintiff demurred on the ground that it appeared upon the face thereof that it did not state facts sufficient to constitute a defense. The court sustained that demurrer. Upon this appeal from that order, the defendants claim that their answer states a defense on the ground that the guaranties were contrary to public policy, and unlawful by reason of facts alleged to substantially the following effect: That, with but one other excep
In support of their claim that their allegations are sufficient to state a defense on the ground that the guaranties are contrary to public policy and therefore unlawful, the defendants’
“That no individual, partnership, or corporation has, directly or indirectly, by any of them been paid any commission, compensation, or bonus, or been given any right or privilege of any kind; nor has any contract or agreement been entered into for payment at any futuhe time of any commission, compensation, or bonus; nor has any promise or agreement, direct or indirect, been entered into to give or allow any person, partnership, or corporation any concession, contract, or privilege.”
Since,.by the very terms used in that subsection, the declaration required thereby is to be in respect to any commission, compensation, or bonus which has “been paid” or any right or privilege which has “been given,” or any contract or agreement or promise which has “been entered into,” that subsection is obviously intended to relate solely to transactions prior and up to the time of organization and incorporation. Such transactions are so far removed, in point of time, and are, therefore, so clearly distinguishable from the stockholders’ guaranties involved herein, which were given long after, and without any relation to the bank’s incorporation, that the provisions in that subsection, and such public policy as may be deemed to be indicated thereby, are manifestly not in point in this action.
The provision in sec. 221.33, Stats., upon which defendants also rely, reads: “No bank or bank officer shall give
Defendants further contend that the guaranties are contrary to public policy and void because of the rule that a bank may not, under its general powers, pledge any of its assets to secure its deposits. (See Commercial Banking and Trust
Defendants also contend that as they, while stockholders of the bank, had personally guaranteed its indebtedness to plaintiff as a depositor, the reports and publications required of the bank by the statutes were actually false because, while the plaintiff’s claim against the bank was by reason of a deposit, “it became [by virtue of the guaranty] a deposit of a special nature which was indirectly and positively the equivalent of a liability.” No such change was effected, as between the bank and the plaintiff, in respect to the nature of the deposit or the bank’s liability thereon, by virtue of the unofficial personal guaranties given to the plaintiff by the defendants in their individual capacities. Consequently, as the guaranties by the defendants in their personal capacity did not in any way increase or alter the bank’s obligation to the plaintiff, there was no falsification in its reports or publications because of its omission to report those guaranties. Likewise, as no reports were required or published as to the assets and liabilities of the stockholders of the bank, or their personal financial ability to discharge their obligations as stockholders, or otherwise, there was no falsification or deception because of the failure to publish or disclose the existence of defendants’ obligation by reason of those guaranties.
By the Court — Order affirmed.