174 Wis. 57 | Wis. | 1921
The facts are not set forth fully because the appeal raises only two material questions that could 'well be stated abstractly. The first is whether there has been such an execution of the agreement on the part of Loveland by the transfer to Peavey of a one-half interest in the $10,000 notes as to lift the guaranty out of the statute of frauds.
Counsel for appellant relies upon Commercial Nat. Bank v. Smith, 107 Wis. 574, 83 N. W. 766, in which the same guaranty was passed upon and held void for the reason that the evidence or proffered proof showed no consideration moving to Smith. It is there said:
“The plaintiff bases its contention upon Dyer v. Gibson, 16 Wis. 557, and subsequent cases, wherein it is held that the promise of one person, though in form to answer for the debt of another, if founded upon a new and sufficient consideration, moving from the creditor and promisee to the promisor, and beneficial to the latter, is not within the statute of frauds, and need not be in writing subscribed by him and expressing the consideration. The difficulty we find with the plaintiff’s case is that, admitting all the facts alleged to be true, they do not bring this case within the rule above stated.” Page 577.
In the present case the proof brings it clearly within the rule because of the valuable consideration shown by the evi
The second question is, Can Peavey justly complain because the personal judgment on the guaranty was taken in form in favor of Loveland? Since the assignee of the judgment of foreclosure was a party to the action and does not complain because the judgment for the deficiency was taken in form in favor of Loveland, Peavey is not injured. He owes either one or the other, and, both being parties to the action and consenting to the form of the judgment, payment to Loveland protects him from payment to Pleegard, the trustee. At common law the action must have been in the name of the assignor of the judgment and the judgment he obtained inured to the benefit of the assignee.
The material findings made by the trial court were sustained by the evidence and the correct legal result ■ was reached.
By the Court. — Judgment affirmed.