Menzner v. Marathon County Bank

189 Wis. 340 | Wis. | 1926

Stevens, J.

The law is well settled that there must be a new consideration moving either tO' the maker or the guarantor of a note, or to both, or a detriment to the payee of the note, in order to give validity to an agreement guaranteeing the payment of an existing indebtedness of the principal. John A. Tolman & Co. v. Infusina, 170 Wis. 433, 435, 175 N. W. 916; Bank of Commerce v. Ross, 91 Wis. 320, 324, 64 N. W. 993.

It is equally well settled that an extension of the time of payment is a sufficient consideration for the promise of a guarantor. 21 Ruling Case Law, 960. A promise to extend time of payment is a “disadvantage to the party giving the time; and disadvantage on the one side, as well as advantage on the other, has ever been held a good consideration.” By such agreement the one granting the extension deprives “himself of the means, which the law afforded him, to coerce the collection of his debt.” Pulliam v. Withers, 8 Dana (Ky.) 98, 33 Am. Dec. 479, 481.

The guaranty here in question was an absolute guaranty of payment, not merely a guaranty of collection. Guaranties of payment “are absolute, not collateral promises. . . . Unlike the contract of an indorser, there is no condition as to demand and notice of default annexed to a contract of guaranty of payment or of performance. Such a guaranty is an absolute promise that the principal will perform in accordance with the provisions of his contract. It is as absolute in respect to such performance as the promise of the principal; hence it is the business of the guarantor to inform himself as to the conduct of his principal, and, in an action against the former, the facts essential to a recovery are just the same as in respect to the latter.” Hubbard v. Haley, 96 Wis. 578, 589, 71 N. W. 1036.

In the case at bar the bank did actually send notices to the deceased, and the deceased went to the bank to confer with it about his liability upon the note. After the maturity of the note, stock which had been pledged as collateral was sold and applied upon the note. The delay in enforcing payment on the note did not release deceased or in any way affect his liability on the note.

The appellant waived the objection to the competency of the cashier of the claimant bank to testify to transactions with the deceased by examining him as to such transactions as an adverse party. Jones, Ev. § 781. No objection was made to any answer of the witness except that in which the cashier stated that the deceased agreed from time to time after the maturity of the note to pay the same. This answer, which should be stricken out as not responsive, has been disregarded by the court in arriving at its decision.

The personal representative of the deceased introduced a letter from the cashier of the claimant bank written to the deceased in which he referred to the note here in question as one “which I am personally indorsing.” The cashier testified that this phrase was inserted through a clerical error and that it should have read, “which you are personally indorsing.” To this testimony the personal representative interposed the objection: “I object to that.” This form of objection does not raise the question of the competency of a witness to testify to transactions with deceased persons. But if proper objection had been made, the testimony should have been received because it did not involve a transaction with a deceased person. Daniels v. Foster, 26 Wis. 686, 691.

The court finds no error in the exclusion of any testimony of the maker of the note. The facts were fully presented and are not in controversy.

By the Court. — Judgment affirmed.