Kane v. Herman

• Decision Date: 01 February 1901
• Citation: 109 Wis. 33,85 N.W. 140
• Parties: KANE v. HERMAN.
• Court: Wisconsin Supreme Court

109 Wis. 33

85 N.W. 140

KANE

v.HERMAN.

Supreme Court of Wisconsin.

Feb. 1, 1901.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Charles I. Kane, special administrator, etc., against Henry Herman, impleaded, etc. From a judgment for plaintiff, defendant Herman appeals. Affirmed.

In July, 1893, the appellant, together with Cook, Hyde, Hadfield, and Brand, were interested as stockholders in the Gothenburg Water-Power & Investment Company, which was in embarrassed circumstances. They were liable, all or some of them, upon about $200,000 of indebtedness of that company, including a negotiable, undue note of $8,000 to A. L. Kane, upon which was a guaranty of payment signed, in the following order, by A. H. Hadfield, Cook & Hyde, Henry Herman, and M. H. Brand. A conference was had as to a method of providing for this mass of indebtedness, so that its enforcement should not bring ruin upon the individuals as well as upon the corporation. As a part of that negotiation, it was arranged that Mr. Cook, one of the firm of Cook & Hyde, would incumber certain private property of his own as security for those debts, excepting about $42,000 worth, which included the note in question; he insisting that the firm name had been signed to the guaranty of that note without his consent or approval. It was accordingly arranged and agreed by all of the guarantors to that note that Mr. Cook, in consideration of making the security aforesaid, should be released from liability upon the $42,000 in question. Thereafter, in July, 1893, a written agreement was entered into between the parties, reciting the above-mentioned indebtedness in detail, the liability of the several parties thereon, the mortgaging of the property of the corporation, and the furnishing of security by Cook, and, as an additional recitation and agreement, contained the following:

“Whereas, it has been agreed between the parties hereto that the said Cook shall be released from his indorsement upon certain of said liabilities amounting in all to the sum of $42,000, but notwithstanding such release it is understood and agreed that in adjusting between the parties hereto the losses, if any arise, by reason of the inability of the said Gothenburg Company to pay its said debt represented by said notes, or any part thereof, that the parties hereto shall stand upon an equal footing, and shall pay each one-fifth of the ultimate loss sustained by reason of the failure of said company to pay its debt or any part thereof: Now, therefore, this indenture witnesseth that the said Herman is to relieve the said Cook from indorsements upon the following notes, that is to say:

+-----------------------+
                ¦Charles Friend ¦$20,000¦
                +---------------+-------¦
                ¦G. P. Sanborn  ¦3,000  ¦
                +---------------+-------¦
                ¦George Ellis   ¦6,000  ¦
                +---------------+-------¦
                ¦Making in all  ¦$29,000¦
                +-----------------------+
                

That the said Brand is to relieve said Cook from his indorsements on the following notes, that is to say:

+------------------------+
                ¦A. L. Kane      ¦$ 8,000¦
                +----------------+-------¦
                ¦James A. Bryden ¦5,000  ¦
                +----------------+-------¦
                ¦Making in all   ¦$13,000¦
                +------------------------+
                

And arrange to take up said notes so...