166 Wis. 280 | Wis. | 1917
Lead Opinion
The trial court’s order that the defendants’ answer be stricken out as frivolous and granting leave to the defendants to serve another answer was not followed by the defendants by answering over and judgment was entered against all the defendants.
The defendants Webb and Barber, appellants in the action, contend that the court erred in striking out their answers as frivolous. It is urged that the allegation of their answer is sufficient to show the guaranty of the notes signed by them is void for want of a consideration. We are cited to Jenkins v. Schaub, 14 Wis. 1, and other cases recognizing
In Dahlman v. Hammel, 45 Wis. 466, it is declared: “The consideration of guaranty need not pass between the parties to it. It is enough if a benefit arises to the party for whom the guaranty is given, and forbearance and extension of credit on the original indebtedness is sufficient.” The facts alleged in the complaint and the answers of the defendants show that the trial court correctly held that the guaranty of Webb and Barber is not void for want of a consideration. These pleadings show that the notes in question were given for a pre-existing debt. There is no fact pleaded to show that the pre-existing debt was not due and payable at the date the notes sued on were given. Under the facts alleged the law presumed that it was due and payable. The record discloses that the defendants were given an opportunity to plead any facts showing that the giving of the notes was not an extension of the time of payment of the debt and thus show a want of consideration, but the defendants elected not to answer further on the subject. It is considered that the trial court’s ruling is sustained upon the grounds that the facts pleaded show that the notes operated as an extension of the time of payment of the pre-existing debt for which the notes were given, and that this benefit to the original debtors is a sufficient consideration for the guaranty which appears on the backs of the notes and signed by the defendants Webb and Barber. Under the facts and circumstances alleged the clear inference is that the contract of guaranty was made before the delivery of the notes, and
The defendants contend that the court erred in permitting recovery in the judgment of the $10 motion costs allowed the plaintiffs on the motion to strike out the answers. The court manifestly imposed the $10 under the provisions of sec. 2924, Stats., as absolute motion costs. The question is: Can these costs be properly included as an item of recovery in the judgment in the case? In Van Ness v. Corkins, 12 Wis. 186, it is stated that to do so is an irregularity under the statutes governing the subject. Chief Justice DixoN, speaking for the court, says: “Such costs form no part of those finally taxable on the recovery of judgment. The payment of such costs is to be enforced by a special proceeding to be taken according to provisions of ch. 149 of the Revised Statutes.” See sec. 3419, ch. 150, Stats. 1915. We discover no good reason why this ruling should not be followed. This improper inclusion of the $10 in the final judgment does not necessarily operate to affect any substantial right of the appellants. In fact the irregularity has not varied the appellants’ obligation to pay this sum to the plaintiffs. Under these circumstances it does not constitute any prejudicial error within the provisions of sec. 3072m, Stats. 1915, and the judgment and order appealed from must be affirmed, the respondents to recover costs in this court.
By the Qourt.- — It is so ordered.
Dissenting Opinion
(dissenting). The burden rests upon the plaintiffs both to allege in their complaint and prove on the trial that there was a legal obligation of the individual defendants upon the guaranty distinct from the obligation
In the first paragraph of the answer the individual defendants say as follows: “And each for himself denies that for a valuable consideration he guaranteed the payment of the note set forth in the first cause of action by indorsing thereon the words of the guaranty set forth in said complaint.” In the second paragraph appears in substance the following as a defense: that the note was given by the defendant corporation to plaintiff “for a pre-existing debt, and that at the time of giving the new note no other or further-obligation was incurred by said defendant, the Wisconsin Grain and Euel Company, by reason of the giving of said note of on account of the guaranty of payment executed by the defendants James H. Webb and F. J. Barber, and denies that said defendants or either of them, at the time or any other time, received any consideration for the execution of the said guaranty contract whatever.”
It is from the allegations last quoted that it is held by the majority opinion that there is sufficient admission of a con
It is immaterial on the appeal here by the individual defendants whether or not it sufficiently appears that the giving of the new note for the pre-existing debt was a sufficient valuable consideration between the maker of the note and the-payee, for the question here must be whether or not there is-sufficient to show a valid consideration between the guarantors and the payee. Between these two parties it is essential that the giving of the guaranty should be simultaneous and a part of the transaction embodied in the surrender of the old note and the taking of the new and as a then consideration therefor, or, if the guaranty be subsequent to the-transaction by which the new note takes the place of the old, that there was some new and independent consideration. Bank of Commerce v. Ross, 91 Wis. 320, 324, 64 N. W. 993; Jansen v. Kuenzie, 145 Wis. 473, 475, 130 N. W. 450; International T. Co. v. Mabbott, 159 Wis. 423, 425, 150 N. W. 429.
There is no language in the complaint or answer from, which I can see that either of these two conditions existed.
The plaintiffs contented themselves with alleging in general terms that the obligation of the defendants, if any, was-based upon “a valuable consideration,” instead of specifying, as they well might have, what the exact consideration was. The defendants squarely meet this allegation by a denial that they or either of them at the time, or any other time, received any consideration for the execution of the guaranty contract whatever. This entitles them to a trial upon the-issue of fact thus tendered, and for that reason I think the-judgment should be reversed.
I am authorized to state that Justice Eerwin joins with me in this dissent.