Bradley Bank v. Tomahawk Pulp & Paper Co.

• Decision Date: 10 May 1932
• Citation: 208 Wis. 134,242 N.W. 505
• Court: Wisconsin Supreme Court
• Parties: BRADLEY BANK v. TOMAHAWK PULP & PAPER CO. ET AL.

208 Wis. 134

242 N.W. 505

BRADLEY BANK

v.TOMAHAWK PULP & PAPER CO. ET AL.

Supreme Court of Wisconsin.

May 10, 1932.

Appeal from a judgment of the Circuit Court for Lincoln County; Byron B. Park, Circuit Judge.

Action by Bradley Bank against Tomahawk Pulp & Paper Company and another. From judgment for plaintiff, defendant C. B. Pride appeals.--[By Editorial Staff.]

Affirmed.

Action begun March 19, 1930; judgment dated July 28, 1931. Action upon guaranty. The Tomahawk Pulp & Paper Company, in April, 1921, in order to comply with the requirements of the plaintiff bank, had executed and delivered to the bank the following document:

“Plaintiff's Exhibit ‘C’

Bond

Know all men by these presents, that C. B. Pride, of Tomahawk, in the county of Lincoln, and State of Wisconsin, is held and firmly bound unto Bradley Bank, of Tomahawk, Wisconsin, in the penal sum of Thirty Thousand ($30,000.00) Dollars, good and lawful money of the United States of America, to be paid to the said Bradley Bank, its certain attorney, heirs, executors, administrators or assigns, for which payment well and truly to be made he binds himself, his heirs, executors and administrators, jointly and severally, firmly by these presents.

Sealed with his seal and dated this ______ day of April, in the year one thousand nine hundred and twenty-one.

The condition of the above obligation is such that if the above bounden obligator, his heirs, executors or administrators shall and do well and truly pay or cause to be paid to said Bradley Bank, its successors or assigns, any and all sums of money, which are now or may hereafter be owing by Tomahawk Pulp & Paper Company, its successors or assigns, to the said Bradley Bank, for, upon or on account of promissory notes, bonds, checks, drafts, acceptances, endorsements, loans, advances, overdrafts, and all other obligations of the said obligor, expressed or implied, now existing or that may be hereafter created or owing, made or incurred, and interest thereon according to the condition and tenor of such instrument or instruments, indebtedness and obligations, respectively, all without fraud or delay, then this obligation to be void, otherwise to be and remain in full force.

Signed and Delivered in Presence of

+----------------------------------+
                ¦J. L. Extrom ¦C. B. Pride¦[Seal.] ¦
                +-------------+-----------+--------¦
                ¦Otis C. Henry¦           ¦[Seal.]”¦
                +----------------------------------+
                

Prior to the date on which the so-called bond was given, the defendant company had negotiated to the plaintiff bank its notes in the sum of $80,000; $50,000 of such notes had been theretofore discounted by the respondent at other banks without recourse, leaving the amounts then due to the bank from the defendant company at the sum of $30,000. Subsequent to the execution and delivery of the bond, all of the sums then due and owing from the defendant company to the plaintiff were paid. Plaintiff continued to remain in possession of the bond, and from time to time other credits were extended to the defendant company, and, when this action was begun in June, 1929, there was then owing from the defendant company to the plaintiff two promissory notes, one dated June 20, 1929, for $1,800, and the other dated June 24, 1929, for the sum of $15,000.

Upon the trial it was the contention of the defendant Pride that, at a time previous to the incurring of the indebtedness sued upon, the bond in question had been surrendered, and that it was at the time suit was begun of no further force or effect. Upon this issue the trial court found:

“That the defendant C. B. Pride did not at any time demand of the plaintiff the surrender, return or cancellation of said guaranty (Bond).

That the defendant C. B. Pride did not at any time revoke, terminate or cancel the said guaranty or withdraw therefrom or notify the plaintiff that he intended no longer to stand as guarantor or surety of the indebtedness of the defendant Tomahawk Pulp & Paper Company.

That the plaintiff made the loans and extended the credit evidenced by the said notes, and each of them, in reliance on the said guaranty.

That the Board of Directors of the plaintiff, at a meeting duly held on the 30th day of August, 1921, authorized a line of credit to the defendant Tomahawk Pulp & Paper Company in a sum not exceeding Thirty Thousand ($30,000.00) Dollars when secured by the bond or guaranty of the defendant C. B. Pride, and this action of the plaintiff's Board of Directors was never thereafter modified or rescinded but continued in full force and effect.”

It further appears that the defendant C. B....