Elkhorn Prod. Credit Ass'n v. Johnson

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: FRITZ
• Citation: 251 Wis. 280,29 N.W.2d 64
• Parties: ELKHORN PRODUCTION CREDIT ASS'N v. JOHNSON et al.
• Decision Date: 14 October 1947

251 Wis. 280
29 N.W.2d 64

ELKHORN PRODUCTION CREDIT ASS'N
v.
JOHNSON et al.

Supreme Court of Wisconsin.

Oct. 14, 1947.

Appeal from a judgment of the Municipal Court of Racine County; Elmer D. Goodland, Judge.

Reversed.

Action brought by Elkhorn Production Credit Association against Howard R. Johnson and his father, Herman R. Johnson, to recover on a promissory note for a loan made by plaintiff to Howard R. Johnson, who as maker executed the note which was signed also by Herman R. Johnson, as an accommodation maker, with plaintiff's knowledge. To secure payment of the note the son gave plaintiff a chattel mortgage on personal property, including a tractor, which was sold by the son with the permission of plaintiff, and released by it from the lien of the mortgage, although Herman R. Johnson, upon hearing of the intended sale and release, instructed plaintiff not to release the tractor from said lien. As the son failed to appear in the action plaintiff recovered judgment against him by default; but Herman R. Johnson alleged as a defense that plaintiff's release of said lien on the tractor operated to discharge him from his liability on the note. The court sustained this defense and entered judgment dismissing the complaint as to that defendant; and from the judgment to that effect plaintiff appealed.

Lyman K. Arnold, of Elkhorn, for appellant.

James S. Fornary, of Racine, for respondents.

FRITZ, Justice.

The facts which are material on this appeal are not in dispute; and, as there is no bill of exceptions, the issues raised by appellant as to whether the judgment, in so far as it dismisses the complaint against the respondent, Herman R. Johnson, is warranted by facts found by the court, must be determined, as appellant contends, upon such matters of fact as are stated in the court's findings. Bobczyk v. Integrity Mutual Ins. Co. of Appleton, 239 Wis. 196, 199, 300 N.W. 909;A. J. Straus Paying Agency v. Terminal Warehouse Co., 220 Wis. 85, 90, 264 N.W. 249. However, that rule is not applicable to the statements, which, although made by the court in the course of or in connection with its findings of fact, or which are so designated by the court, constitute in reality conclusions of law upon facts which are undisputed or rightly found by the court. As to all such matters the court's determination thereof is subject to review and to reversal, if erroneous, even though there is no bill of exceptions. Mars, Inc., v. Chubrilo, 216 Wis. 313, 318, 257 N.W. 157;

[29 N.W.2d 65]

Blaha v. Borgman, 142 Wis. 43, 124 N.W. 1047;Shaw v. Crandon State Bank, 145 Wis. 639, 650, 129 N.W. 794;Sherman v. Madison Mutual Ins. Co., 39 Wis. 104.

In the case at bar the material matters of fact of this appeal, which are stated in the findings, are to the following effect: The respondent signed the note as an accommodation maker for his son, with the knowledge of plaintiff, the payee and holder thereof, and in connection with and as security for the note, the son gave plaintiff as security for the note a chattel mortgage on certain farm machinery, including a tractor, the value of which machinery exceeded the amount of the note. Subsequently, plaintiff without respondent's knowledge...