Onsrud v. Paulsen

• Decision Date: 24 June 1935
• Citation: 219 Wis. 1,261 N.W. 541
• Parties: ONSRUD v. PAULSEN.
• Court: Wisconsin Supreme Court

219 Wis. 1

261 N.W. 541

ONSRUD

v.PAULSEN.

Supreme Court of Wisconsin.

June 24, 1935.

Appeal from a judgment of the Circuit Court for Vernon County; R. S. Cowie, Circuit Judge.

Action by Clara M. Onsrud, executrix of the estate of O. L. Onsrud, deceased, against Peter A. Paulsen. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Affirmed.

This is an appeal from a judgment of the circuit court for Vernon county, rendered November 10, 1934, in favor of the plaintiff and against the defendant in the sum of $1,653.55. Action was commenced December 14, 1933, on a promissory note, the only defense being a want of consideration for the note. The case was tried to the court, jury trial being waived. The defendant appealed.

The material facts will be stated in the opinion.

J. Henry Bennett, of Viroqua, for appellant.

D. M. Langve, of Westby (C. W. Graves, of Viroqua, of counsel), for respondent.

MARTIN, Justice.

The facts are not in dispute. On December 10, 1919, the defendant and his wife borrowed the sum of $1,150 from Mrs. O. L. Onsrud, a sister of the defendant, Peter A. Paulsen, and gave their promissory note therefor, payable two years after date, bearing interest at the rate of 6 per cent. per annum. Thereafter certain payments aggregating $244 were made to apply on said note, the last payment being made on August 27, 1926.

Mrs. Onsrud, the payee, died intestate in the year 1923. She had no children and left her husband as her sole heir. At the time of her death she and her husband resided in Minneapolis, Minn. The Minnesota statute, section 8720, Mason's Minn. St. 1927, relating to the descent and distribution of property, provides: “If there is no surviving child and no lawful issue of any deceased child, and the intestate leaves a surviving spouse, then the whole estate shall descend to such spouse.”

It appears that following the death of Mrs. Onsrud the defendant, Peter A. Paulsen, made four payments on this $1,150 note, said payments being a part of the $244 above mentioned. Mr. O. L. Onsrud remarried on May 25, 1929. It is conceded that there was no administration of the estate of Mrs. Onsrud, the payee in said note.

On August 25, 1927, the amount due on the note, including accrued interest, was $1,365. The defendant knew that there had been no administration of his sister's estate and that her husband was the sole heir. He wanted a further extension of time for payment of the amount due. It was thereupon arranged to extend the time for payment for three years, the defendant to give his personal note to O. L. Onsrud in the sum of $1,365, that being the amount due as of said date; the note to bear interest at the rate of 6 per cent. per annum. Upon the execution and delivery of said note by defendant, Mr. Onsrud canceled and surrendered the original note. Thereafter the defendant paid the interest accruing on said note for four consecutive years.

O. L. Onsrud died on May 25, 1933, leaving his widow, the plaintiff in this action, surviving. She brings this action in her capacity as executrix of her husband's estate, which includes the note in question.

The only defense made is alleged want of consideration. The trial court held that the defense of failure of consideration was not sustained by the evidence and ordered judgment in plaintiff's favor in the sum of $1,653.55 including principal, interest, and costs.

While it is true on elementary legal principles that the legal title to the original $1,150 note did not vest in Mr. Onsrud upon the death of his wife, there having been no administration of the wife's estate, nevertheless said note was due and payable. Mr. Onsrud had possession of it. As surviving husband, he was the sole heir and had the legal right to qualify himself as administrator and bring suit to enforce collection of said note. He was the beneficial owner of the note. There is no proof as to the interest of any creditors, and at the time this action was commenced on December 14, 1933, the statute of limitations would have run on the original note, the last payment thereon having been made on August 27, 1926.

[1][2] Appellant's contention that there was no consideration for the note in suit cannot be sustained. Page on the Law of Contracts, § 514, defines consideration: “A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.” In the Restatement of the Law of Contracts, § 75, the definition of consideration is...