Parry v. Spikes

49 Wis. 384 | Wis. | 1880

Cole, J.

The ruling of the county court sustaining the demurrer to the complaint is clearly supported by the decision in Taylor v. Pratt, 3 Wis., 674, decided by this court a quarter of a century ago. The facts stated in the complaint are substantially the same as those presented on the record in that case; consequently the order cannot be reversed without overruling Taylor v. Pratt.

We are decidedly opposed to unsettling a rule of law of such practical importance in the business transactions of every day, which was established so long ago upon the fullest argument, after great deliberation, whatever might be our views upon the point as a new question. “Stability and certainty in the law are always of the first importance. They are more especially so in cases arising under the statute of frauds than any other. There is no statute the provisions of which enter more frequently into the transactions of trade and commerce. It is a matter of daily and hourly interest that they should be remembered and attended to.” Dixon, C. J., in Houghton v. Ely, 26 Wis., 181-195. These observations of the chief justice have great weight in cases of this character. The learned counsel for the plaintiff insists that the doctrine of Taylor v. Pratt has been greatly weakened, if not directly overthrown, in subsequent cases decided by this court. But this is a mistake. It is true, Dixon, C. J., in Houghton v. Ely, makes a vigorous attack upoh the doctrine of Taylor v. Pratt, and attempts to show that it is unsound in principle and opposed to the great weight of authority. But the majority of the court did not concur in the chief justice’s strong disapproval of .the doctrine of Taylor v. Pratt. For, while I agreed with the chief justice in holding the defendants, in Houghton v. Ely, as not within the protection of the statute of frauds, and liable as joint makers — they having written their names on the back of a non-negotiable promissory note, at the time it was made and delivered to the payee, for the purpose of giving the instrument additional credit,— I stated that I should adhere to the decision in Taylor v. Pratt in a case presenting the same facts.

Mr. Justice Paine combated the views of the chief justice in an opinion marked by his usual clearness of reasoning and logical precision, saying that while the decision in Taylor v. Pratt stood opposed to an indefinite number of authorities, there was still no doubt that it was in accordance with the statute of frauds, and he thought the contract of defendants in Houghton v. Ely came within the principle decided in the former case. But the majority did not, in Houghton v. Ely, attempt to overrule Taylor v. Pratt, and the latter case stands to-day as the law of this state upon the point decided. That point was, as stated by Mr. Justice Paine, in his opinion just referred to, that a written guaranty upon a negotiable promissory note, though referring to the note, and though made at the same time with the note, and constituting a ground of the credit given to the mater, was void within the statute of frauds, because it did not express the consideration for the guaranty. Page 204. The facts set forth in the complaint show that this was the precise nature of the guaranty entered into by the defendants. In other words, it is the case of Taylor v. Pratt over again, in every essential element, fact and feature. The decision must be now, as it was then, against the validity of the guaranty. It is idle to enter upon any general discussion of the question involved. It is sufficient to say that the deposit has long since been decided against the plaintiff, and the argument on both sides of the question entirely exhausted. "We have no hope that we could add anything valuable to the discussion if we were to try, and we therefore affirm the order.

By the Court. — The order of the county court is affirmed.