First National Bank of Milwaukee v. Buetow

Maesi-iaix, J. The sole question presented on this appeal is, does the evidence warrant the finding that appellant was not wrongfully persuaded by respondent’s cashier to sign the guaranty ? On that two well-known rules are to be observed, viz.: To set aside a written instrument on the ground of fraud, the evidence of the fraud must be clear and satisfactory. In order to set aside findings of fact made by a trial co,urt, they must appear to be contrary to the clear preponderance of the evidence. After carefully studying the record before us the view prevails that the findings cannot be disturbed. The testimony bearing thereon was mainly given by appellant and respondent’s cashier. The former emphatically supported the material allegations of his counterclaim. He gave as an excuse for not reading the paper before signing it that he did not have his glasses with him and could not-read understandingly without them. He gave as an excuse for not having some one not adversely interested to him read the paper for his benefit, or take time to otherwise understand it that the cashietr persuaded him not to delay as it was important to conclude the matter presently. On those points appel [288] lant was corroborated to some extent by one of bis associate-guarantors. There was some evidence given by him upon cross-examination to the effect that on a former occasion he-gave testimony indicating that he read the instrument sufficiently to get some idea of its meaning. The cashier denied appellant stated that he could not. read the paper, or desired to take it home for the purpose of reading it, or anything about signing it to be good for a year. He further testified, that he explained the instrument fully to the appellant; that he did not read it to him, but gave it to him for examination; that he said to him, “We are having a lot of trouble from time to time getting indorsements on new paper and new notes and' the guaranty will avoid all trouble of getting indorsements. It takes the place of indorsements.” To which he replied,. “ ‘All right/ and signed it.” There was some evidence to the-effect that one of appellant’s associate guarantors stood by during the conversation between appellant and respondent’s-cashier; that no effort was made by appellant to have such associate explain the i^aper; that the latter understood its import and that neither he nor the Qther associate guarantor' made any defense to the action. The words “new note,”1 which counsel for appellant urges upon our attention as involving an admission by appellant’s cashier that only renewals of the $3,000 note were in contemplation when the-paper was signed, have been considered. The circumstance-of their use is quite persuasive in support of appellant’s position. However, there stands the positive evidence of the-cashier that he fully explained the paper to appellant, some-evidence that the latter took the paper into his hands for examination and to some extent, at least, read it; the fact that the meaning of the paper would be obvious to any person exorcising ordinary care in examining it; the fact that one ofi the guarantors stood by, where, if he were paying any attention to the matter, he might have heard what occurred, though-there was evidence that he did not hear the same; the fact that. [289] appellant Rad ample opportunity to Rave the instrument explained to him by one of his associates and did not secure such explanation; the fact that the other associate guarantors understood the paper, as is indicated by their making no defense thereto, the improbability that the cashier committed such a barefaced fraud as is claimed, and other circumstances appearing in the evidence, -which, in the whole, preclude holding that the findings on the issue as to fraud are against the clear preponderance of the evidence. Therefore the judgment appealed from must be affirmed. By the Gourb. — So ordered.