Kaufer v. Stumpf

Maesiiall, J. At the outset on this appeal stands the contention of appellant that respondent waived the statute of frauds (sec. 2307, Stats. 1898), relating to the validity of any agreement to answer for the debt, default, or miscarriage of another, by not pleading it, and, therefore, that the court erred in applying such statute to the guaranty found 'to have been made by respondent and upon which his liability rests, if he is liable at all. As no contract of guaranty, valid or invalid, was set forth in the complaint respondent was in no position to plead the statute on that subject as a defense. The claim set forth in the complaint was that respondent agreed to indorse John Stumpf’s note and agreed to pay it in consideration of the transfer of the land to John. That was put in issue and the finding was substantially in respondent’s favor. There is much authority to the effect that when the contract-pleaded is put in issue the plaintiff in order to recover must establish a valid agreement. The defendant is not called upon to anticipate that an invalid contract will be established and to plead thereto. Taylor v. Merrill, 55 Ill. 52; Hunter v. Randall, 62 Me. 423; Russell v. W., M. & P. R. Co. 39 Minn. 145, 39 N. W. 302; Bernhardt v. Walls, 29 Mo. App. 206; Allen v. Richard, 83 Mo. 55, 60. The principal contention relied on, as it seems, is that tho court erred in deciding that the agreement made by Charles Stumpf to guarantee the payment of John Stumpf’s note was a purely collateral promise and so void under sec. 2307, Stats. 1898, before referred to. It is insisted by appellant’s counsel that the promise was original in character in that it [482] was to pay tbe promisor’s own debt to appellant. This court bas often held, as claimed by counsel, that a promise, in form, by one person to guarantee payment of the debt of another, where such promise is in fact to pay such person’s own debt, is not within the statute because not collateral. Dyer v. Gibson, 16 Wis. 557; Wyman v. Goodrich, 26 Wis. 21; Putney v. Farnham, 27 Wis. 187; Young v. French, 35 Wis. 111; Hoile v. Bailey, 58 Wis. 434, 17 N. W. 322; McCord v. Edward Hines L. Co. 124 Wis. 509, 102 N. W. 334. In order that such doctrine could be applied here, it would be necessary for it to appear that at the time Gharles Stumpf made the agreement to guarantee his brother’s note he was indebted to appellant and that the agreement was in reality to pay such indebtedness. Whether an indebtedness existed as above suggested depends upon the facts found by the court, not upon mere language contained in the findings referring to the relations between appellant and respondent Gharles Stumpf as those of debtor and creditor. It seems that the court did not mean in using such language that a valid indebtedness existed between the parties, because that would be plainly inconsistent with the decision that the guaranty was a mere collateral promise. True, with considerable significance the court mentioned such relations as those of debtor and creditor. It was said in the findings that the note and mortgage made by John Stumpf, Jr., were delivered to appellant to secure Gharles Stumpfs indebtedness, and further, that when Gharles Stumpf suggested to appellant the deeding of the property to John he said he would secure his indebtedness to appellant by a note and mortgage on the property given by John and that he would guarantee such note. We do not deem the use of such language by any means conclusive that the trial court held that there was a valid indebtedness of Gharles Stumpf to appellant, and if it were otherwise such holding would be in the nature of a conclusion of law and not stand in the way [483] of tbe real relations between tbe parties as shown by tbe facts found. Now at tbe time tbe arrangement was made between appellant and Charles Stumpf as to tbe property acquired by tbe former being deeded over to John Stumpf, there existed, •according to tbe findings, merely an agreement that appellant should advance tbe necessary money to buy in tbe property at tbe foreclosure sale, take tbe title in bis own name, and transfer it to Charles thereafter upon tbe latter’s reimbursing him for such advances, such agreement being carried out to tbe extent of acquiring tbe property at such sale and making such advances. We are unable to see why at that stage tbe agreement was not within tbe statute of frauds (sec. 2302, Stats. 1898), requiring agreements relating to real estate to be in writing, which was pleaded. It seems to fall clearly within tbe principle of Scheuer v. Cochem, 126 Wis. 209, 105 N. W. 573, where it was held, as indicated by tbe syllabus: “An oral agreement by which tbe parties were to become jointly interested, as partners, in tbe purchase of land — one to advance tbe whole purchase price and take tbe title in bis own name and afterwards, on repayment to him of one half tbe sum so advanced, with interest, to convey an undivided half to tbe other party, is within the statute of frauds (sec. 2302, Stats. 1898) ; and it is immaterial whether tbe party so orally agreeing to convey was tbe owner of tbe land at-tbe time or whether be afterwards acquired tbe title.” Tbe basic idea of the decision is that so long as tbe obligation to convey tbe land rests in a mere oral agreement it is void. It seems to follow necessarily that when Charles Stumpf agreed to guarantee bis brother’s note there was no binding agreement existing between him and appellant to take tbe land and repay tbe advances. There existed a mere void promise in that regard. It would seem to logically follow that tbe agreement as to tbe note was collateral, as tbe court found, and within sec! 2307 of tbe statute of frauds (Stats. [484] 1898). While it' does not clearly appear that the learned circuit judge thus reached a conclusion we apprehend that he did, and, in any event, it seems that such conclusion is the necessary result of the facts found and the law as laid down in the decisions of this court. Error is claimed because the court allowed judgment to go in favor of respondent Agnes Q. Stumpf for costs although no personal claim was made against her, she being joined as a defendant, as the wife of Charles Stumpf. At the worst that was a mere harmless irregularity. The two defendants joined in answering the complaint. They appeared by the same attorneys. So far as we can discover the costs were no greater than they would have been had judgment been rendered therefor in favor of Charles Stumpf only. By the Court.- — Judgment affirmed.