Goerlinger v. Juetten

• Decision Date: 15 April 1941
• Citation: 237 Wis. 543,297 N.W. 361
• Parties: GOERLINGER v. JUETTEN et al.
• Court: Wisconsin Supreme Court

237 Wis. 543

297 N.W. 361

GOERLINGER

v.JUETTEN et al.

Supreme Court of Wisconsin.

April 15, 1941.

Appeal from an order and part of a judgment of the Circuit Court for Waupaca County; H. J. Severson, Judge.

Order affirmed. That part of the judgment appealed from is reversed with directions.

Action by Ferdinand Goerlinger, plaintiff and appellant, commenced July 31, 1939, against defendants, Jack Juetten, Frank Bohman, and Howard Anthes, on a promissory note executed by said defendants on April 6, 1926 in the sum of $2,300 with interest at six per cent per annum, due one year from date. Case was tried to the court without a jury. Judgment was entered October 26, 1940 in favor of the plaintiff and against the defendant Bohman in the sum of $2,078.68, and in favor of the defendants Juetten and Anthes dismissing the action as to them and for costs against the plaintiff in the sum of $118.50. The plaintiff's note having been lost prior to the trial of the action, the court ordered that plaintiff furnish a bond under sec. 327.27, Stats., before entering judgment against defendant Bohman. The plaintiff appeals from that part of the judgment which dismisses his action against defendants Juetten and Anthes, and also from the order which required him to furnish a bond. The defendant Bohman, on February 17, 1941, served notice of appeal from the judgment in favor of the plaintiff and against him, but did not furnish the undertaking required by sec. 274.11(3), Stats. Plaintiff has moved to dismiss the appeal of the defendant Bohman for the reason that it was not taken and perfected in time. The material facts will be stated in the opinion.Eberlein & Eberlein, of Shawano, for appellant.

Roy H. Morris, of Clintonville, for respondents.

MARTIN, Justice.

It appears that on or about April 6, 1926, defendants purchased from plaintiff certain garage property in the city of Clintonville, including the equipment in said garage and stock on hand. In part payment of the purchase price, defendants gave the plaintiff their joint and several promissory note on which this action was brought. At the time the note was given, defendants had organized a copartnership consisting of themselves, which copartnership carried on its business under the firm name and style of Triangle Motor Company. In January, 1928 defendants organized a corporation known as the Triangle Motor Company and transferred to the corporation all of the partnership assets. Defendants contend that the plaintiff knew of the transfer from the copartnership to the corporation and that plaintiff accepted the corporation as his debtor on the note; in other words, that there was an assumption of the debt by the corporation, a consent to such assumption by the plaintiff, and a release of the defendants from personal obligation on the note. Each defendant in his separate answer alleges that after the corporation was formed, the following payments were made on the note by the corporation:

+------------------------------------------------+
                ¦“March 31, 1928  ¦$138.00¦Interest              ¦
                +-----------------+-------+----------------------¦
                ¦May 4, 1929      ¦138.00 ¦Interest              ¦
                +-----------------+-------+----------------------¦
                ¦September 9, 1930¦142.00 ¦Principal and Interest¦
                +-----------------+-------+----------------------¦
                ¦November 7, 1930 ¦800.00 ¦Principal             ¦
                +-----------------+-------+----------------------¦
                ¦July 28, 1931    ¦128.52 ¦Interest              ¦
                +-----------------+-------+----------------------¦
                ¦December 31, 1934¦174.47 ¦                      ¦
                +-----------------+-------+----------------------¦
                ¦October 17, 1935 ¦85.81  ¦                      ¦
                +-----------------+-------+----------------------¦
                ¦December 31, 1935¦33.53  ¦                      ¦
                +-----------------+-------+----------------------¦
                ¦December 31, 1936¦155.86 ¦                      ¦
                +-----------------+-------+----------------------¦
                ¦March 18, 1937   ¦66.95” ¦                      ¦
                +------------------------------------------------+
                

At the time of the commencement of this action there was a balance of $1,500 due on the principal of said note and accrued interest in the sum of $203. The note provided for an attorney's fee of ten per cent. In each of the separate answers two defenses are pleaded. First, that the plaintiff accepted and acknowledged the Triangle Motor Company (the corporation) as his debtor, and, second, that none of the defendants made any payment of money to the plaintiff on said note after January, 1928, and therefore the cause of action alleged did not accrue within the six years before the commencement of this action. As to the first defense, the trial court said: “It is the contention of the defendants that this obligation (the debt evidenced by the note) was assumed by the corporation and that the plaintiff agreed that he would look to the corporation for his payments herein, and that the defendants were completely released from such obligation. I hold that the evidence does not establish this fact.”

This finding is sustained by the great weight and clear preponderance of the evidence. As to the defense that the six-year statute of limitations (sec. 330.19(2) had run against plaintiff's cause of action on the note, the court said: “The more serious proposition is involved as a matter of defense as to the defendants, Howard Anthes and Jack Juetten. It is undisputed by the testimony that neither of these defendants made any of the payments or authorized any of the payments to be made on this note. That all of these payments as made were made by the defendant, Frank Bohman. It is contended by the defendant, Frank Bohman, that he made these payments not for himself or for any of these defendants, but only as president of the Triangle Motor Company. The plaintiff herein was dealing with Frank Bohman as an individual and had a right to assume, and no doubt did assume, that the payments were made by him for himself on this indebtedness. However, not any of these payments being made by the other two defendants, Anthes and Juetten, and not being authorized by them, it must be held that the statute of limitations as far as they are concerned applies and that the claim is barred as to these two defendants.”

[1] While the corporation was a separate entity, the defendants owned all of the corporate stock and served as its directors and officers. They pleaded and also testified that payment of the note in question, which was their joint and several obligation, was assumed by the corporation. They, of course, by having the corporation assume their obligation to the plaintiff on the note, could not, without the plaintiff's consent, discharge their personal liability on the note. The trial court found that the plaintiff did not agree to look to the...