Rosendale State Bank v. Holland

• Decision Date: 07 February 1928
• Citation: 195 Wis. 131,217 N.W. 645
• Parties: ROSENDALE STATE BANK v. HOLLAND ET AL.
• Court: Wisconsin Supreme Court

195 Wis. 131

217 N.W. 645

ROSENDALE STATE BANK

v.HOLLAND ET AL.

Supreme Court of Wisconsin.

Feb. 7, 1928.

Appeal from a judgment of the Circuit Court for Fond du Lac County; Chester A. Fowler, Circuit Judge. Affirmed.

Action begun September 24, 1926, by the Rosendale State Bank against Frank Holland and William Holland to recover upon a note. William Holland appeals from a judgment against both defendants entered January 8, 1927.

October 3, 1919, Frank Holland borrowed $1,700 of the plaintiff bank, and gave a note signed by himself and William Holland. The bank knew that William Holland was an accommodation maker. When the note became due, Frank Holland produced a renewal note signed by himself, on which he had forged the signature of William Holland. The original note was stamped “Paid,” and delivered to Frank Holland. The bank accepted several renewal notes, with no knowledge of the fact that the name of William Holland had been forged on all of these renewal notes. When these forgeries were discovered, the bank procured the original note from Frank Holland, brought suit upon it, and recovered judgment.D. F. Blewett, of Fond du Lac (L. J. Fellenz, of Fond du Lac, of counsel), for appellant.

Williams & Foster, of Fond du Lac, for respondent.

STEVENS, J.

[1][2] 1. “The appellant was liable as maker to the plaintiff notwithstanding he was only an accommodation party.” Schoenwetter v. Schoenwetter, 164 Wis. 131, 135, 159 N. W. 737, 738. Appellant was a person primarily liable because as a joint maker he was, by the terms of the note, absolutely required to pay the same. Section 116.01 of the Statutes. Being a person primarily liable to pay the note, he did not stand in the shoes of a surety, and was not discharged by the extension of the time granted by the bank.

[3] 2. Appellant's liability on the note was not discharged when the note was stamped “Paid” and returned to Frank Holland. “It is the long and well-settled doctrine in this state that a renewal by the giving of a new note or the extension of time in which to pay a pre-existing debt is not a discharge of the old and original obligation and the creation of a new obligation, but a mere carrying on of the prior obligation, unless and except it appears that the parties agreed that it should be a destruction of the old and the creation of a new obligation.” Wisconsin Trust Co. v. Cousins, 172 Wis. 486, 503, 179 N. W. 801, 807.

There is no proof that would warrant a finding that the parties intended that the surrender of the original note and the acceptance of the renewal should effect a destruction of the old obligation and the creation of a new one. The court therefore properly refused to submit to the jury the question whether the bank intended to cancel the obligation of William Holland when it stamped the original note “Paid,” and surrendered it. All that the bank did was to accept a new note, which purported to carry forward to a future date the same obligation on the part of William Holland that was evidenced by the original note.

3. After the forgeries were...