First National Bank of Antigo v. Wunderlich

130 N.W. 98, 145 Wis. 193, 1911 Wisc. LEXIS 30

• Court: Wisconsin Supreme Court
• Decided: February 21, 1911
• Status: Published

Opinions

SiebeckeR, J.

The defendant contends that at the time the instrument was delivered to the cashier of the plaintiff bank he informed the cashier and it was mutually understood that the guaranty was not to become effective and binding until the defendant’s brother had signed it, which he was expected to do within a day or two. This is controverted by the evidence of the cashier and Sanford, who assert that no such provision or condition was stated by the defendant. They assert that the delivery of the guaranty was unconditional and that the parties understood that it then became effective. It was a question for the jury to say whose version was correct. They found that the parties intended that it should be effective from the time of delivery.

It is argued that the form of the instrument shows on its face that it was an incomplete and partially executed contract, in that it is in the plural form and at the foot has two blanks for the signatures of two guarantors, and that the cashier knew that only one had signed it. These were evi-dentiary circumstances to be considered in connection with the other evidence on the question, but they do not of themselves show that the instrument was not an executed and complete contract when so delivered to the cashier. The fact that a contract in the plural form is signed by only one person at the time of its manual tradition is not conclusive that it is an incomplete instrument. Contracts of such form may be and often are treated by the parties thereto as complete, effective, and binding on the subscriber. 1 Randolph, Comm. Paper, § 87. The binding effect of this contract, under the facts shown, was a question to be tried out before the jury on the evidence adduced.

' It is urged that the guaranty was revoked and that the court erred in not specifically submitting that issue to the jury. We have examined the evidence on which reliance is placed to show a revocation. The claim is that the defendant revoked it shortly after the cashier received it into his possession, at the interview with the cashier after defendant’s brother had refused to sign it. True, the defendant insisted to the cashier at this meeting that he had delivered the instrument with the understanding that it was not to become effective and binding until the brother had signed it, but the evidence fails to show that he revoked it. Indeed, this would have been inconsistent with his claim that it was never in force. The cashier testified denying that anything concerning a revocation had occurred, but asserted that the defendant at this interview asked what amount the bank had advanced to Sanford in reliance on the guaranty, and upon informing him thereof the defendant forbade him advancing any additional amount. The jury found this to be true and therefore disallowed recovery for the $300 loaned on June 16, 1905, on the evident theory that this sum was loaned to Sanford after tbe defendant had directed the cashier not to loan him any additional sum. The submission of this question embraced all the issues of fact presented by the evidence on this branch of the case, and hence no errors were committed respecting an alleged revocation.

The further contention is made that the defendant was discharged from the obligation to the bank for all sums so advanced on the faith of the guaranty by the renewal of the notes and the extension of the time of payment without his consent or knowledge. This claim is asserted upon the ground that he as guarantor is secondarily liable and that such renewals and extensions of the time of payment operated to release him. The contention overlooks the continuing nature of the guaranty. By it the defendant guaranteed payment of all future sums advanced and the payment of all uotes executed to the bank for sums advanced in any amount not to exceed $1,000. It seems clear to us that the guarantor, undertook to pay any sums due on any notes up to $1,000 and that the renewed notes were embraced in such promise.

The guaranty recites that it was given for value and there-is no evidence to contradict the recital; hence the court correctly held that there was no issue raised on this point.

An exception is urged to the ruling whereby the witness-Hogan was precluded from testifying in rebuttal on the issue of the delivery of the instrument. The trial court held that the defendant should have offered to show this fact by this witness when he had the case, and that the offer came too late on rebuttal. There was no abuse of discretion in this-ruling and hence it cannot be disturbed.

We find that the instructions upon which the case was submitted to the jury stated the law correctly and embraced all of the issues presented by the pleadings and the evidence, and hence no prejudicial error was committed in the instructions-given to the jury.

Tbe court properly refused to direct a verdict and to grant a new trial.

By the Oowrt. — Judgment affirmed.