189 Wis. 277 | Wis. | 1926
The following opinion was filed January 12, 1926:
For many years prior to 1923 A. T. Graber was engaged as a sole trader in the cattle business, and no claim is herein made that the defendant was during such time interested in his business. The defendant was a man of large means, being the owner of 1,300 acres of land, and his financial condition was such, as testified to by the cashier
It may be admitted that -evidence of transactions subsequent to the $15,000 loan would be of little value if it appeared from the evidence that the defendant and his son obtained the loan to further a joint enterprise, and'if the bank in fact relied upon representations which it had a right to rely upon with respect to an alleged joint enterprise. But viewing the testimony of the plaintiff’s witnesses as a whole, and taking into consideration all the surrounding facts and circumstances, no other conclusion can be arrived at excepting that the' bank fully knew that the loan was for the sole benefit of A. T. Graber and that the defendant had no interest in the proceeds of the loan or in the transactions subsequent to the loan. At any rate, any interest which the defendant might have had in procuring this loan, or any benefit which might have accrued to him, amounted to a mere incidental interest or benefit, and therefore was not the main object and purpose for which this loan was procured.
But assuming that the defendant did have an interest in this loan, what consideration did the bank part with, and what advantage accrued to the defendant in the transaction ? There is no evidence in the case that the bank would have denied this loan ho either the defendant individually or to A. T. Graber and the defendant. The defendant’s individual note, unsecured, would have represented ample security to the bank, on account of his large financial ability. The responsibility of the defendant would have also amply secured a joint note. The alleged oral promise, therefore, of the defendant to assume the individual indebtedness of A. T. Graber, clearly amounted to an undertaking to pay the debt of a third party without consideration; and such obligation, not being in writing and expressing a consideration and not being signed by the person charged, plainly brings it within the purview of the statute of frauds above referred to.
In McCord v. Edward Hines L. Co. 124 Wis. 509, 511, 512, 102 N. W. 334, the opinion, rendered by Mr. Justice Dodge, referring to sub. 2 of sec. 2307, Stats. 1898, being the statute involved herein, uses the following forcible and significant language:
“This provision comes to us from the original statute of frauds, 29 Car. II, of which it has been said by an enthusiast that every line was worth a subsidy, and by a cynic that every line has cost a subsidy to interpret. The latter- statement has been gaining force as the ingenuity of greed has, through centuries, been strained to escape this apparently plain provision, until its application is now surrounded by such a cloud of decisions as to defy exhaustive -examination.”
The statute of frauds was enacted to prevent perjury, and long before its enactment it had become apparent that ingenious devices and schemes had been resorted to by creditors to shift an indebtedness of an insolvent or impecunious debtor upon third persons not in any way involved or interested in the original debt. The original statute is couched in plain and unambiguous language. That it was a wise provision is made manifest by its retention for centuries in England and its enactment in the various states of the Union. The difficulties encountered in its enforcement do not arise from the language used, but from an application
“The mere fact that an advantage may incidentally result to the promisor from his oral promise to pay the debt of another is not sufficient to take it out of the statute of frauds, but there must be other evidence that such advantage was the object or consideration of the promise.”
See, also, Emerick v. Sanders, 1 Wis. 77; Shook v. Vanmater, 22 Wis. 532; Vogel v. Melms, 31 Wis. 306; Young v. French, 35 Wis. 111; Hoile v. Bailey, 58 Wis. 434, 17 N. W. 322; Rietzloff v. Glover, 91 Wis. 65, 64 N. W. 298; Commercial Nat. Bank v. Smith, 107 Wis. 574, 83 N. W. 766.
As above stated, any advantage or benefit in the instant case accruing to the defendant was a mere incidental one, and not sufficient to take the case out from under the statute. It would also seem, that, if it be deemed that the statute is not operative under, the peculiar facts and circumstances of this case, it would become almost completely emasculated, and in the future would fail of the original purpose for which it was enacted.
Our conclusion herein is not based upon any view entertained that the testimony of the plaintiff’s witnesses is false
By the Court. — The judgment is reversed, and the cause is remanded with directions to dismiss the complaint.
A motion for a rehearing was denied, with $25 costs, on March 9, 1926.