Winterfield v. Cream City Brewing Co.

• Decision Date: 30 April 1897
• Parties: WINTERFIELD v. CREAM CITY BREWING CO.
• Court: Wisconsin Supreme Court

96 Wis. 239

71 N.W. 101

WINTERFIELD

v.CREAM CITY BREWING CO.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Charles Winterfield against the Cream City Brewing Company. Judgment for defendant, and plaintiff appeals. Reversed.

Action was commenced by plaintiff against one Joseph Scheer, as principal, and the Cream City Brewing Company, as surety, for unpaid rent upon what is known as the “Hotel Eagle,” in the city of Milwaukee. The cause was tried by a referee. The referee found that plaintiff had leased the hotel in question to Scheer for the term of three years at an agreed rental of $120 per month, payable monthly in advance; that the defendant company gave a written guaranty for the payment of such rent; that the purpose of the guaranty was to provide a place for the sale of defendant's beer; that at expiration of lease there was due and unpaid seven months' rent, amounting to $840; that prior to this action the plaintiff had not released the defendant company from its liability as guarantor; that plaintiff is entitled to judgment against defendants Joseph Scheer and the Cream City Brewing Company for $840, with interest and costs of the action. The defendant company filed exceptions to the findings of the referee. The court gave judgment against the defendant Joseph Scheer, as demanded in the complaint. The report of the referee, so far as it affected the defendant company, was set aside, and judgment was rendered dismissing the complaint, as to said company, with costs. From this judgment the appeal is taken.Granger & Son, for appellant.

Fiebing & Killilea, for respondent.

NEWMAN, J. (after stating the facts).

Some question is made whether the due execution of a contract of guaranty by the defendant the Cream City Brewing Company is sufficiently proved. This question is entirely irrelevant, as the issue made by the pleadings involved no such question. The complaint alleges that the defendant the Cream City Brewing Company, by an instrument in writing duly executed, did agree with the plaintiff “that, if default should be made by the said Joseph Scheer in the payment of any of the aforesaid rent which he * * * promised to pay in said lease, * * * that it, the said Cream City Brewing Company, would pay to this plaintiff such sum or sums of money as would be sufficient to make up any deficiency, and fully satisfy all the conditions of said lease, and without any notice of such default, or prior demand being made.” The allegation seems to be sufficiently comprehensive for the purpose. The answer does not deny that such an agreement was made, but sets up the affirmative defense that defendant had been released by the plaintiff from every liability arising from such agreement. It further expressly admits that the defendant's secretary signed such an instrument. And, as to the other allegations of the complaint, it denies having knowledge or information sufficient to form a belief. The denial is inconsistent both with the affirmative defense and with the specific admission. If it was intended as a denial of the execution of the alleged contract of guaranty, it was evasive and nugatory. For that is a matter which is conclusively presumed to be within the knowledge of the defendant. And a denial in this form does not require the plaintiff to make proof on the subject. Mills v. Town of Jefferson, 20 Wis. 54;Sweet v. Davis, 90 Wis. 409, 63 N. W. 1047. The secretary who signed the contract and who verified the answer knew all the facts relevant to its due execution.

Some point was made that the corporate seal was not attached to the...