Bishop v. Jensen

• Decision Date: 06 June 1933
• Citation: 212 Wis. 30,248 N.W. 771
• Parties: BISHOP v. JENSEN ET AL.
• Court: Wisconsin Supreme Court

212 Wis. 30

248 N.W. 771

BISHOP

v.JENSEN ET AL.

Supreme Court of Wisconsin.

June 6, 1933.

Appeal from a judgment of the Municipal Court for Kenosha County; Calvin Stewart, Judge.

Action by Albert J. Bishop against Chris P. Jensen and another. Judgment for plaintiff, and defendant Charles Genz appeals.--[By Editorial Staff].

Reversed and remanded, with directions.

The action was commenced on August 15, 1932, to recover from defendants, as maker and guarantor, respectively, upon a certain promissory note in the sum of $1,000, executed on April 8, 1920. The guaranty of the defendant Genz was written on the note and read as follows: “For value received I hereby guarantee the prompt payment of the within note at maturity or at any time thereafter waiving notice and protest.” The note was not paid by the maker on the due date, April 8, 1921, but thereafter interest was paid by the maker each year up to April 8, 1931. In July, 1932, the maker, Jensen, filed a petition in bankruptcy and was thereafter discharged. The defendant Genz interposed the defense of the statute of limitations.

All the foregoing facts were stipulated. The case was tried by the court upon the stipulation of facts, and judgment entered for the plaintiff on December 5, 1932. The defendant Genz appeals.L. E. Vaudreuil, of Kenosha, for appellant.

Geo. W. Taylor, of Kenosha, for respondent.

WICKHEM, Justice.

This appeal presents two very narrow issues, and the answer to neither is in serious doubt.

[1][2] 1. From what time does the statute of limitations run against a guarantor of payment? It is elementary that a statute of limitations begins to run against a remedy at the time when the cause of action accrues, and that “a cause of action accrues where there exists a claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it.” Barry v. Minahan, 127 Wis. 570, 107 N. W. 488, 490. Under the terms of this guaranty a right of action was perfect in the plaintiff against the defendant Genz at the maturity of the note and without notice. “A guaranty of the payment of a note or debt, is an absolute undertaking on the part of the guarantor for a valuable consideration, to pay the debt at maturity, in case the principal debtor does not; and the guaranty in such case may sue the guarantor at once, if the debt is not paid at maturity.” Day v. Elmore, 4 Wis. 190. The result would not be different if this were to be treated as a commercial indorsement, with notice of dishonor waived. This being true, the statute commenced to run in favor of the guarantor at the maturity of the note. The fact that his promise was to pay at maturity or any time thereafter is of no consequence. He could be sued at maturity. The question whether the running of a statute of limitations against the principal bars the remedy against the surety has no relevancy here. The cases raising that question are those in which, due to various circumstances, the statute has not completely run as to the guarantor at the time when the remedy against the principal is barred. In cases of guaranty of...