226 Wis. 249 | Wis. | 1937
Upon this appeal it is the contention of the plaintiff that the court erred in holding that the guar
The performance by the defendant of her part of the agreement was dependent upon the performance by the bank of its part of the agreement. The bank having breached its promise to loan money to the defendant to enable her to carry
The establishment by oral testimony of the independent agreement made by the bank to loan $15,000 to the defendant, including the $8,300 borrowed by Al. Wassersteen, does not offend the rule that a written instrument cannot be varied or contradicted by oral evidence. By the terms of the guaranty in question, the bank did not agree to loan the defendant anything. By that instrument she agreed that if the bank made loans as therein specified, she would pay and discharge the same; hence there was no contradiction of the terms of the guaranty. The promise of the bank to make the loan was not inconsistent with the written instrument.
We deem it unnecessary to discuss the contention made with respect to fraud claimed to have been practiced by the bank upon the defendant. If there was any fraud, it arose from the fact that the bank when it promised to make the loans to defendant had no intention of making the loans.
After entry of the judgment, the defendant moved to set aside the findings and judgment, and to be permitted to introduce-additional evidence. The court granted the motion and took additional testimony. This was a matter well within the discretion of the trial court, and we discover no basis upon which the granting of the motion could be held to be an abuse of discretion. Boutin v. Catlin (1899), 101 Wis. 545, 77 N. W. 910. In any event, the evidence offered and received after the vacation of the judgment was not material upon the issues decisive of the case.
Judgment affirmed.