145 Wis. 193 | Wis. | 1911
Lead Opinion
The defendant contends that at the time the instrument was delivered to the cashier of the plaintiff bank he informed the cashier and it was mutually understood that the guaranty was not to become effective and binding until the defendant’s brother had signed it, which he was expected to do within a day or two. This is controverted by the evidence of the cashier and Sanford, who assert that no such provision or condition was stated by the defendant. They assert that the delivery of the guaranty was unconditional and that the parties understood that it then became effective. It was a question for the jury to say whose version was correct. They found that the parties intended that it should be effective from the time of delivery.
It is argued that the form of the instrument shows on its face that it was an incomplete and partially executed contract, in that it is in the plural form and at the foot has two
' It is urged that the guaranty was revoked and that the court erred in not specifically submitting that issue to the jury. We have examined the evidence on which reliance is placed to show a revocation. The claim is that the defendant revoked it shortly after the cashier received it into his possession, at the interview with the cashier after defendant’s brother had refused to sign it. True, the defendant insisted to the cashier at this meeting that he had delivered the instrument with the understanding that it was not to become effective and binding until the brother had signed it, but the evidence fails to show that he revoked it. Indeed, this would have been inconsistent with his claim that it was never in force. The cashier testified denying that anything concerning a revocation had occurred, but asserted that the defendant at this interview asked what amount the bank had advanced to Sanford in reliance on the guaranty, and upon informing him thereof the defendant forbade him advancing any additional amount. The jury found this to be true and therefore disallowed recovery for the $300 loaned on June 16, 1905, on the evident theory that this sum was loaned to San
The further contention is made that the defendant was discharged from the obligation to the bank for all sums so advanced on the faith of the guaranty by the renewal of the notes and the extension of the time of payment without his consent or knowledge. This claim is asserted upon the ground that he as guarantor is secondarily liable and that such renewals and extensions of the time of payment operated to release him. The contention overlooks the continuing nature of the guaranty. By it the defendant guaranteed payment of all future sums advanced and the payment of all uotes executed to the bank for sums advanced in any amount not to exceed $1,000. It seems clear to us that the guarantor, undertook to pay any sums due on any notes up to $1,000 and that the renewed notes were embraced in such promise.
The guaranty recites that it was given for value and there-is no evidence to contradict the recital; hence the court correctly held that there was no issue raised on this point.
An exception is urged to the ruling whereby the witness-Hogan was precluded from testifying in rebuttal on the issue of the delivery of the instrument. The trial court held that the defendant should have offered to show this fact by this witness when he had the case, and that the offer came too late on rebuttal. There was no abuse of discretion in this-ruling and hence it cannot be disturbed.
We find that the instructions upon which the case was submitted to the jury stated the law correctly and embraced all of the issues presented by the pleadings and the evidence, and hence no prejudicial error was committed in the instructions-given to the jury.
By the Oowrt. — Judgment affirmed.
Dissenting Opinion
(dissenting). It is impossible to tell upon wbat evidence tbe jury relied in finding that tbe surety was not liable on tbe note of June 16tb. Tbe jury was not instructed that a renewal of tbe two notes first given, after a revocation of tbe guaranty, and without tbe consent of tbe surety, would discharge the latter, and that if revocation were found as a matter of fact a verdict should be returned for the defendant, and we have no means of knowing what the result of such an instruction would have been. Indulging in the presumption most favorable to support tbe judgment, it is that the jury found that some time before the last note was given the defendant advised tbe plaintiff to make no further loans on the strength of the guaranty. It seems to me that after this notice was given tbe guaranty ceased to be a continuing one. As to all loans made before tbe notice was given defendant might be liable. But I think tbe creditor had no-right to extend tbe time of payment of tbe debt and renew tbe notes which evidenced it without the consent of the surety after tbe guaranty bad been repudiated. It is needless to cite authority to tbe proposition that tbe liability of a surety is strictissimi juris, or that an extension of the time of tbe payment of an obligation without tbe assent of tbe surety ordinarily operates to discharge him.
I think tbe judgment should be reversed on another ground. Tbe defendant requested tbe court to charge tbe jury in reference to the two notes first given, as follows:
“I also charge you that any extension of time of tbe other two notes after the bank was notified that defendant would not be bound by reason of said guaranty, if you find that they were extended without the knowledge or consent of said de-*200 feudant, such, renewals on the part of the bank were unwarranted and the defendant is discharged from any liability thereon.”
There was- sufficient evidence to support a finding of the jury to the -effect that the plaintiff was advised by the defendant that he repudiated and- refused to be bound by the guaranty. There being such evidence, the instruction asked was correct as a proposition.of law and material as a matter of fact. Such an instruction might well have had a controlling weight with the jury. .1 think it reasonably appears from the record that exception was taken to the refusal of the court to give the charge above quoted, and that the exception is properly before this court for consideration.
