Scollard v. Bach

116 N.W. 757, 136 Wis. 63, 1908 Wisc. LEXIS 192

• Court: Wisconsin Supreme Court
• Decided: June 5, 1908
• Status: Published

Opinion

TiMLiN, J.

Tbe only question raised by tbe demurrer is whether, in tbe following contract, tbe consideration is sufficiently expressed to satisfy tbe requirements of tbe statute of frauds, sec. 2307, Stats. (1898):

“[Title of Cause.] Whereas, proceedings supplementary to execution are now pending in said action and the parties are desirous of effecting a settlement: It is hereby stipulated that defendant pay to plaintiff, or bis attorney, tbe sum of twenty-five dollars at or before delivery of tbis instrument and not less tban five dollars on tbe first of eacb and every month, beginning with tbe first day of April, 1901, until, including tbe said twenty-five dollars, tbe sum of $433.20 shall have been fully paid, and that, if bis financial condition warrant, be may be required to pay said sum in larger instal-ments, not exceeding ten dollars per month. In consideration thereof and in consideration of tbe promises hereinafter noted by tbe other parties hereto, plaintiff agrees to accept such payments when made as aforesaid, as a full satisfaction of the judgment in bis favor and against defendant herein; be also agrees to release said judgment of record within three days from the delivery of tbis instrument and to pay all costs incurred subsequent to the entry of said judgment.

“W. E. Scollabd, Plaintiff.

“David EeiedMAN, Defendant.

“2. We, the undersigned, jointly and severally guarantee the full performance for said plaintiff by defendant at the times aforesaid, and further agree that no delay on the part of the defendant in making any such monthly payments, or by plaintiff in enforcing the same, is to be construed as in any way releasing either of us from any liability incurred by virtue of our signatures to this instrument.

“Dated April 8, 1901. Jacob Bach.

“Joseph Caspaei.”

The fact that the signatures of the two principals appear appended to the first paragraph-in tbe foregoing contract, and tbe signatures of tbe two sureties or guarantors separately to tbe second paragraph, would indicate an intention of tbe parties to make two separate contracts. But tbis inference is overborne by the language -of the guaranty referring to “tbe times aforesaid.” This means the times for payment specified in the preceding paragraph, and' forms a connecting link between the separate paragraphs of this document. In the first paragraph the plaintiff Scollard undertakes to do certain things, after the delivery of the instrument, “in consideration of the promises hereinafter noted by the other parties hereto.” There were no other promises thereinafter noted than those of the sureties. There were no “other parties” to the contract except the sureties. It would do violence to the language of this instrument to hold that the words “the other parties hereto” meant Friedman alone. So that we have one instrument, in which- instrument the consideration of the guaranty is expressed. Blakeslee v. Rossman, 43 Wis. 116; Harney v. Burhans, 91 Wis. 348, 64 N. W. 1031; Van Doren v. Roepke, 107 Wis. 535, 83 N. W. 754; Young v. Brown, 53 Wis. 333, 10 N. W. 394; Otis v. Haseltine, 27 Cal. 80; Highland v. Dresser, 35 Minn. 345, 29 N. W. 55; Browne, Stat. Frauds, § 406.

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