Automatic Screw Machine Products Co. v. Continental Casualty Co.

202 N.W. 681, 186 Wis. 425, 1925 Wisc. LEXIS 251

• Court: Wisconsin Supreme Court
• Decided: March 10, 1925
• Status: Published

Opinion

Vinje, C. J.

Th'e appellant urges that there was no consideration for the bond because it was given to release an attachment on real estate, and such release, it claims, was never made as the statute requires. We shall not inquire into the validity of this claim because it appears without dispute that the bond was also given for the purpose of preventing a levy on personal property. The forbearance to make such levy was a sufficient consideration for the bond.

It is also claimed that the conditions of the bond exceed the statutory requirements and therefore should not be enforced. Both parties may make valid contracts broader than the statute requires. Building Contractors’ Mut. L. Ins. Co. v. Southern S. Co. 185 Wis. 83, 200 N. W. 770; 18 A. L. R. 1227, note.

It will be observed that there are three conditions named in the bond and that the first two have, by subsequent proceedings, been rendered incapable of performance, leaving only the last one, providing for the payment of the judgment, operative. And it is upon this condition that the plaintiff relies.

The defendant claims that the subsequent bankruptcy of the K & F Manufacturing Company invalidates the bond. It is clear that the enforcement of the bond operates favorably upon the creditors of the bankrupt because it lessens the amount of claims to the extent that satisfaction is. had from the surety. The condition to pay the judgment is absolute in terms. It does not depend upon the happening or non-happening of other events. Therefore subsequent bankruptcy of the principal debtor is not made a condition for invalidating the bond. Only the payment of the judgment can operate to cancel it. This court has consistently so held. Whereatt v. Ellis, 103 Wis. 348, 79 N. W. 416; Pope v. Title G. & S. Co. 152 Wis. 611, 140 N. W. 348. Other courts hold the same. Guaranty S. Corp. v. Oppenheimer, 243 Mass. 324, 137 N. E. 644; Lockwood v. Exchange Bank, 190 U. S. 294, 23 Sup. Ct. 751.

Where bankruptcy of defendant occurs after a judgment is obtained against him it is only the lien of the judgment against his assets that is affected. The judgment remains inviolate and can be enforced against any one liable with the bankrupt for the payment thereof. This is such a case.

By the Court. — Judgment affirmed.