86 Wis. 569 | Wis. | 1893
The basis of this action is t-he following note and guaranty:
“ $1,500.00. . Chicago, March 2nd, 1889.
“ Three mouths’after date, we promise to pay to the order of F. A. Bates, Fifteen Hundred Dollars, at Park National Bank here, value received, with eight per cent, interest.
“ The Fuel ’ Bubnee Teust Agreement,
“ By F. A. Bates, Gen’l Mgr.
“ For value received, we hereby guarantee the payment of the within note at maturity, or at any time thereafter, with interest at eight per cent, per annum until paid, and agree to pay all costs and expenses paid or incurred in collecting the same. 1 “ W. W. Donnelley,
“ B. 0. Faueot,
“ F. A. Bates,
“ James X. Gates.”
A similar guaranty is signed by “ B. B. DoNNelley and SoNS, W. W. DoNNelley, President.”
This note and guaranty were given to replace and renew another note and guaranty which had been given before that time, and had been negotiated at the bank and the proceeds thereof applied to the uses of the trust, and which was then due and unpaid. They were delivered to the Park
The material facts set out in the answer in defense of the action are that said note was delivered to one Packer, an officer of said bank, and that said first note was thereupon taken up and retired; that said first note was delivered to said Packer or the bank for the purpose of raising money for the purposes of said trust, but that said trust or the ■trustees thereof never received any sum of money whatever for said note, or any other consideration therefor, and that said note was without any consideration whatever,— and these allegations are substantially the same as to the second note or the one in suitthat said Packer delivered said last note to one Eoberts, without receiving any consideration therefor, and said Eoberts made an assignment for the benefit of his creditors to one Oscar D. Witherell, and said note came to the possession of said Witherell as the assignee of said Eoberts, and without any other consideration.
On the conclusion of the testimony the court directed the jury to find a verdict for the plaintiff for the sum of $949.80, this being one half of the sum paid by the plaintiff, with interest, and the defendant has appealed frofn the judgment thereon.
This is an action at law on the ground of an implied as-sumpsit., brought by the plaintiff as one of the guarantors, he having paid the whole note, interest, and costs, to recover from the defendant, as the only other resident guarantor, one half of the same.
I have not specially considered the cases cited in appellant’s brief apparently adverse to the cases and authorities above ^ited on the question whether the principles of equity should prevail in actions at law for contribution. We do not approve the reasoning of those cases, and prefer to follow the cases we have cited above, as being well considered and more reasonable. . But we are disposed to hold
By the Court.— The judgment of the superior court is affirmed.