Waldheim v. Miller

72 N.W. 869, 97 Wis. 300, 1897 Wisc. LEXIS 49

• Court: Wisconsin Supreme Court
• Decided: October 22, 1897
• Status: Published

Opinion

"WiNSlow, J.

The written guaranty Asued upon was unquestionably a promise to answer for the debt of another, and, in order to be valid, it must be based upon a consideration, which must be expressed in the writing itself. E. S. sec. 2307, subd. 2. If the account of Bliven was an already existing indebtedness, then there was n'o consideration for Miller's promise, and it would be worthless. If, on the other hand, the promise was first given and the goods were delivered on the faith of that promise, there would be a consideration which would support the promise, if it be expressed in the writing. It is contended'that the writing on •its face refers to some past indebtedness, and that it cannot be contradicted or varied by parol; hence, that no valid consideration is expressed. We think, however, that the “ account ” named in the guaranty may mean either a past account, or one about to be incurred. If it may refer to •either, then parol evidence of the surrounding circumstances was admissible to show the meaning of the word. Walrath v. Thompson, 4 Hill, 200. Parol evidence was admitted, and showed beyond dispute that the account, named was not an already existing account, but one about to be contracted, and which was not in fact contracted until after the guaranty was given. This made a valid, present consideration, which is sufficiently expressed in the writing to satisfy the statute. Eastman v. Bennett, 6 Wis. 232; 1 Brandt, Suretyship & G. (2d ed.), § 84.

By the Court.— Judgment affirmed.