Mair v. Schultz

194 Wis. 578 | Wis. | 1928

Stevens, J.

The liability of the defendant Schultz turns on the question whether recovery is barred by the six-year statute of limitations. That in turn depends on the question whether there was a valid extension of the time of payment.

The finding of the trial court that the maker and the plaintiff agreed that the time of payment should be extended in consideration of the agreement on the part of the maker to pay one per cent, additional interest annually is supported by the greater weight of the evidence. Basing his decision upon Braasch v. Bonde, 191 Wis. 414, 421, 211 N. W. 281, the trial court correctly held that such agreement for an extension of time was void because the agreement was not in writing and was not to be performed within one year and was not based upon an executed consideration.

Appellant’s chief contention is that the extension was based upon an executed consideration, that is, the payment of interest in advance. Interest was in fact paid before it was due. Had the parties agreed that the time should be extended in consideration of the payment of interest in advance, that would have constituted an executed consideration thát would have taken the agreement out of the statute of frauds. Grace v. Lynch, 80 Wis. 166, 49 N. W. 751. But the record is barren of any proof that payment of interest in advance was the consideration for the agreement to extend the time of payment.

By the Court. — Judgment affirmed.