170 Wis. 433 | Wis. | 1920
In their answers and upon the trial the appealing defendants claimed that the bond was given for a past indebtedness due plaintiff from Peterson; that no consideration moved from plaintiff to the sureties or to Peterson; and that the sureties were induced to sign the bond through fraudulent concealment of facts known to it but not to them, to the effect that Peterson was a defaulter. The trial court found against them upon the latter point. The alleged fraud consisted in plaintiff failing to inform the sureties of the fact that Peterson was already indebted to it at the time they signed the bond and that plaintiff had reason to believe that Peterson was a defaulter. Plaintiff had no communication whatever with the sureties before they signed. Under the rule of John A. Tolman Co. v. Butt, 116 Wis. 597, 93 N. W. 548, the finding of the trial court must be sustained.
The court, though requested to do so, refused to find
Owing to the failure of the court to find upon the issue whether the bond was given for a past indebtedness, and, if so, whether any consideration moved from plaintiff to the sureties or to Peterson, we conclude that justice in this case has not been done, and that pursuant to the provisions of sec. 2405m, Stats. 1917, we must reverse the judgment as to the appealing defendants and send the case back to take further evidence, if either party desires it, upon the above issues not found, and for findings thereon and judgment in accordance with the findings made.
By the' Court. — Judgment reversed as to appealing defendants only, and cause remanded for further proceedings according to the opinion.