Peck v. Peck

• Decision Date: 05 April 1905
• Citation: 124 Wis. 550,103 N.W. 5
• Parties: PECK v. PECK.
• Court: Wisconsin Supreme Court

124 Wis. 550

103 N.W. 5

PECK

v.PECK.

Supreme Court of Wisconsin.

April 5, 1905.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by Charles B. Peck against Lucinda W. Peck. From a judgment for defendant, plaintiff appeals. Affirmed.

Action to recover on an alleged contract of guaranty. It was claimed in the complaint that on March 19, 1890, O. D. Peck delivered his promissory note to plaintiff, obligating himself to pay him one year from the date thereof $2,000, with interest thereon from such date at the rate of 10 per cent.; that on November 14, 1895, defendant signed a writing thereon guaranteeing the principal thereof, such writing being in these words: “For value received I hereby guarantee the payment of the principal on the within note;” that at the time of the commencement of this action there was due of such principal over and above payments by defendant $1,550. Judgment was demanded accordingly. Defendant answered, among other things, that she signed her name on the back of the note at the time alleged in the complaint, but that she had neither knowledge nor information sufficient to form a belief as to whether the alleged written guaranty was then thereon or not; and in any event that there was no consideration whatever to support it. There was evidence to the effect that there was a writing on the note of some sort when defendant signed her name thereon, but as to whether it included the words “for value received” the evidence was conflicting. The evidence was further to the effect that the maker of the note died testate prior to the signing of the guaranty; that defendant was his residuary legatee; that subsequent to her signing the guaranty she called at the bank where the note was left for collection and made several payments thereon; and that there was no consideration to support the guaranty, unless it was in that in consideration thereof plaintiff agreed not to file any claim on the note against the estate of the maker. As to whether there was such an agreement the evidence was in conflict. The jury found specifically in favor of the defendant on both of such disputed matters, and thereon judgment was rendered for the defendant, from which plaintiff appealed.A. G. Weissert (M. H. Eaton and Fredric J. Eaton, of counsel), for appellant.

Felker, Stewart & McDonald, for respondent.

MARSHALL, J. (after stating the facts).

Respondent was permitted to testify generally in answer to a direct question that she did not receive any consideration for signing the guaranty. We are unable to see how, under any reasonable view of the case, appellant was prejudiced thereby, even if the question were improper, since there was no claim made that any consideration was rendered for the guaranty, unless as such appellant agreed not to file any claim against the estate of O. D. Peck, deceased, which was denied by respondent by evidence not objected to or objectionable.

Evidence on the part of respondent was admitted, under...