Drovers' Deposit Nat. Bank v. Tichenor

• Decision Date: 24 February 1914
• Citation: 156 Wis. 251,145 N.W. 777
• Parties: DROVERS' DEPOSIT NAT. BANK v. TICHENOR ET AL.
• Court: Wisconsin Supreme Court

156 Wis. 251

145 N.W. 777

DROVERS' DEPOSIT NAT. BANK

v.TICHENOR ET AL.

Supreme Court of Wisconsin.

Feb. 24, 1914.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by the Drovers' Deposit National Bank against M. H. Tichenor and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.

This is an appeal from an order overruling a demurrer to the amended complaint in the action. The complaint alleged that plaintiff was a national banking corporation doing business at Chicago, Ill.; that the Tichenor-Grand Company was a corporation also doing business in the state of Illinois; that the defendants Tichenor, Grand, and Newgass were stockholders in said Tichenor-Grand Company, and that the defendant Tichenor was the president of such company; that on July 27, 1908, one Nicholson executed and delivered to the Tichenor-Grand Company five promissory notes, dated at London, July 27, 1908, and payable July 27, 1910; that in and by each of said notes said Nicholson promised and agreed to pay the Tichenor-Grand Company or order, at Parr's Bank, London, the sum of £2,050 sterling; that the sum agreed to be paid by said five promissory notes aggregated £10,250 sterling, and that a copy of one of said notes is made a part of the complaint; that on the 30th day of September, 1909, the Tichenor-Grand Company was the owner of and holder of said five promissory notes, and that on said day the defendants entered into an agreement with the plaintiff, whereby the defendants promised and agreed, in consideration of the plaintiff purchasing and discounting said five promissory notes, that they would pay the said notes at maturity according to the tenor thereof, and that a true copy of said agreement is annexed to the complaint, and marked “Exhibit B;” that in performance of said agreement, relying upon the same, and in consideration thereof, the plaintiff discounted to the Tichenor-Grand Company said five promissory notes, and paid said company the sum of $9,983.50 for each of said promissory notes, less the discount thereof, and that said Tichenor-Grand Company did then and there indorse and deliver over to said plaintiff the said five promissory notes; that plaintiff demanded payment of said notes at maturity, and that four of said notes were paid, but that Exhibit A remains unpaid; that defendants have been requested to pay the same, and have neglected to do so; that plaintiff is the owner of said note, and there is now due and owing from the defendants the sum of $9,983.50, with interest from July 27, 1910, no part of which has been paid. The complaint then sets out the Illinois statute of frauds applicable to cases where one person agrees to answer for the debt, default, or miscarriage of another. Among other things the statute pleaded provides: “The consideration of any such promise or agreement need not be set forth or expressed in writing, but may be proved or disproved by parol or other legal evidence.” The complaint further sets forth the English statute of frauds, which contains a provision substantially similar to that of the Illinois statute above quoted. Exhibit B attached to the complaint reads as follows: “Chicago, Illinois, September 30, 1909. To the Drovers' Deposit National Bank of Chicago, Illinois. The undersigned being interested in the business success of the Tichenor-Grand Company, a corporation, and desire to assist it in obtaining credit with you and money from you hereby request you to discount for the said Tichenor-Grand Company five (5) promissory notes of 2050 pounds each made and executed by Alfred J. Nicholson dated at London, July 27th, 1908, and payable July 27th, 1910, aggregating in all the sum of 10,250 pounds sterling. We do hereby promise and agree to pay said notes at maturity, according to the tenor thereof, and we do hereby waive notice of the acceptance of this guaranty. M. H. Tichenor, W. D. Grand, Louis M. Newgass.” The demurrer was interposed on the ground that the complaint did not state a cause of action because the agreement between the defendants and the plaintiff was nudum pactum.O'Bryan & Marshall, of Chicago, Ill. (McGee, Jeger, Klingelhoefer & Henning and Michael M. Hoyt, all of Milwaukee, of counsel), for appepllants.

Newton W. Evans, of Oconomowoc (Miller, Mack & Fairchild and J. G. Hardgrove, all of Milwaukee, of counsel), for respondent.

BARNES, J. (after stating the facts as above).

The appellant contends that the agreement sued on is void because it was a promise to pay the debt of another, and the writing does not express the consideration therefor, and because there was no consideration in fact to support the promise. The complaint alleges that defendants agreed, in consideration of the plaintiff purchasing the notes referred to in the statement of facts, that they would pay the same at maturity, and that in performance of said agreement, and relying on the same and in consideration thereof, plaintiff paid $9,983.50 to the Tichenor-Grand Company for the note involved in this suit. The demurrer admits these averments to be true. By Exhibit B the defendants agreed “to pay the notes at maturity according to the tenor thereof,” because they were interested in the business of the corporation which owned the notes, and desired to assist it in obtaining credit and money from the plaintiff.

[1] As to the plaintiff, the transaction did not involve any pre-existing obligation. Neither the maker of the note nor the payee nor the...