Perry v. Riske

• Citation: 2 Wis.2d 377,86 N.W.2d 429
• Parties: Josephine PERRY, Respondent, v. Delwin A. RISKE, Defendant, Elizabeth Riske, Appellant.
• Decision Date: 03 December 1957
• Court: United States State Supreme Court of Wisconsin

Page 429

86 N.W.2d 429

2 Wis.2d 377

Josephine PERRY, Respondent, v. Delwin A. RISKE, Defendant Elizabeth Riske, Appellant.

Supreme Court of Wisconsin.

Dec. 3, 1957.

John V. Evans, Kenosha, for respondent.

McEvoy & Munger, Kenosha, for respondent.

STEINLE, Justice.

The defendants, Delwin A. Riske and Elizabeth Riske were married on November 8, 1947. Prior thereto Delwin A. Riske had been married to Dora Riske who was a daughter of the plaintiff, Josephine Perry. Dora Riske died at Glendale, California on December 10, 1945 leaving surviving two minor children of her marriage with Delwin A. Riske, one of whom was Sally Ann Riske. Dora Riske and Sally Ann came to the plaintiff's home in California in June, 1945. Dora Riske remained there until her death, and the child, Sally Ann, continued to stay with the plaintiff until the time when the note in question was signed by the defendant, Elizabeth Riske, in June, 1953. The plaintiff was appointed as guardian of the person of Sally Ann in California on February 16, 1948. It appears without dispute that Delwin A. Riske failed completely in the matter of the support of his daughter, Sally Ann, during the years that she lived in the plaintiff's home, and that the plaintiff frequently had made demands for such support upon him.

Elizabeth Riske and Delwin A. Riske resided in Kenosha. In June 1953, Elizabeth Riske traveled to California to visit a brother. While there, she contacted the plaintiff with a view of obtaining permission to have Sally Ann visit the defendants in Kenosha. She was referred to plaintiff's lawyer who informed her that the plaintiff wanted $5,000 in payment of the arrearage of support money for Sally Ann. She told the lawyer that Delwin and she were 'not made of money.' A few days later the lawyer told her that the plaintiff was willing to settle for $2,500, and that she would have to sign notes in favor of the plaintiff in order to obtain the plaintiff's permission to take the child out of California. She agreed to do so and signed three notes, all of which were dated June 10, 1953, before leaving with Sally Ann for Kenosha. Two of these notes were ordinary negotiable promissory notes for $2,000 each payable in installments of principal and interest at the rate of $40 per month commencing October 1, 1953. The third note was for $500. The lawyer retained one of the $2,000 notes and the $500 note. It was arranged that Elizabeth Riske was to take the other $2,000 note to Kenosha for Delwin A. Riske's signature thereon, and that when said note was returned to plaintiff's lawyer, the other $2,000 note would be forwarded to the Riskes in Kenosha. Delwin A. Riske signed the note which Elizabeth Riske brought to Kenosha. It was mailed to plaintiff's lawyer together with payment of the $500 note. Thereafter and on July 8, 1953 the lawyer sent to the Riskes the $2,000 note which he had originally retained and which had been signed by Elizabeth alone. He also sent to the Riskes the $500 note which they had paid. Seven monthly installment payments of $40 each were made on the $2,000 note before default. The note provided that in the event of default with respect to any installment payment, the whole sum would become due immediately.

It is the position of the defendant, Elizabeth Riske, that there was no consideration to her or to her husband for the note in suit, and further that she was not liable thereon as an accommodation maker. The plaintiff contends that the record establishes that there was valuable consideration to both defendants, but, in event of a determination that there was no consideration to Elizabeth Riske, said defendant nevertheless is estopped as a matter of law in denying consideration as to her,--the latter of such contentions being based on the fact that she and her husband made installment payments on the obligation. The plaintiff also maintains that Elizabeth Riske was at least liable for payment as an accommodation party to the note, and that consideration to the husband was sufficient to bind her.

We are constrained to hold that Elizabeth Riske was an accommodation maker of the note in question, and that the consideration supporting her promise in the note was that extended to Delwin A. Riske by the plaintiff. By reason of such determination we deem it unnecessary to adjudicate the other issues raised upon this appeal.

Sec. 116.34, Stats., provides:

'An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.'

An accommodation maker is liable on a note to the payee providing that the accommodated party received a valid consideration and notwithstanding that the accommodating party did not receive consideration. In Marling v. Jones, 1909, 138 Wis. 82, 87, 119 N.W. 931, 933, it was said:

'No consideration moving to the accommodation maker is necessary to uphold an accommodation note. The very name of the paper suggests this. The consideration in such case which supports the promise of the accommodation maker is that parted with by the person taking the accommodation note, and received by the person accommodated.'

In support of her position that there was want of consideration, the defendant Elizabeth Riske relies upon such authorities as London & Lancashire Indemnity Co. v. Allen, 1956, 272 Wis. 75, 74 N.W.2d 793; In re Estate of Vogel, 1951, 259 Wis. 73, 47 N.W.2d 333; and Hover v. Magley, 1905, 48 Misc. 430, 96 N.Y.S. 925. The facts in each of said cases are clearly distinguishable from those here. In London & Lancashire Indemnity Co. v. Allen, supra, the liabilities of the maker to the payee accrued before the note, which was payable on demand, had been signed by the maker. Some time after such signing, the accommodation maker signed it. In that case this court pointed out that a note payable on demand is due immediately, citing Bruha v. La Crosse Plow Co., 1935, 218 Wis. 238 240, 260 N.W. 425, and Accola v. Giese, 1937, 223 Wis. 431, 433, 271 N.W. 19. In London & Lancashire Indemnity Co. v. Allen, supra, no direct consideration was extended to the accommodation maker. For such reasons and also because the note did not postpone, diminish, or otherwise affect the maker's liability in return for the accommodation maker's signature, and did not promise to do so, it was held that there was want of consideration to the accommodation maker. Offer was made on part of the payee's successor to prove that before the note was...