First State Bank of Brillion v. Boetcher

BaeNES, X The trial court held that the document in question was not a contract of guaranty, but simply an offer wbicb would not become a binding contract until it was accepted by the bank and notice of such acceptance given to the guarantors. This conclusion was reached on the authority of Miami Co. Nat. Bank v. Goldberg, 133 Wis. 175, 113 N. W. 391, and A. B. Kuhlman Co. v. Cave, 135 Wis. 279, 115 N. W. 793, and decisions cited in those cases. It might be further said that it was at least assumed in Sentinel Co. v. Smith, 143 Wis. 377, 127 N. W. 943, that the law was correctly stated in the two prior decisions. Tbe trial judge further held tbat tbe alleged guaranty did not cover indebtedness existing at tbe time tbe paper was signed. As we think tbe court was correct in reaching this conclusion, and inasmuch as it disposes of tbe case, it is unnecessary to pass upon tbe other ground of nonliability wbicb was found to exist. Tbe instrument recites tbat it is given in consideration of tbe “making advances or giving credit” and guarantees tbe payment of “all moneys tbat shall at any time be due from Charles Boetcher individually or from said Boetcher & Company ... on any balance of bis or their account . . . in [447] curred with reference td this agreementIt then proceeds that “this guaranty shall be a continuing guaranty and apply, to future advances It is clear that indebtedness due or to become due from Charles and Louise Boetcher to the bank when the guaranty was given was not incurred with reference to the guaranty. It is just as clear that thp guaranty, only covered indebtedness incurred in reference thereto. The renewal of notes which evidenced indebtedness existing at the time the guaranty was signed did not create any new indebtedness. Neither did it give any new or additional credit. Such action simply extended the time of payment of the old obligations. Deseret Nat. Bank v. Burton, 17 Utah, 43, 53 Pac. 215; Drake v. Sherman, 179 Ill. 362, 53 N. E. 628; Whitehead v. American L. & B. Co. 70 N. J. Eq. 581, 62 Atl. 554. Guaranties will be construed to be prospective rather than retrospective, unless it clearly appears that the parties intended that they should cover past transactions. 1 Brandt, Suretyship & G. (3d ed.) § 108; Nat. Bank v. Rockefeller, 174 Fed. 22; People v. Lee, 104 N. Y. 441, 10 N. E. 884; Pritchett v. Wilson, 39 Pa. St. 421. The court, having found on sufficient evidence that the notes sued upoh evidenced indebtedness existing at the time the alleged guaranty was given, was right in holding that the guarantors were not liable on their undertaking even though it was in full force and effect. It is argued that the guarantor Fred Boetcher acknowledged his liability on the guaranty and agreed to pay before suit was commenced and that recovery should be had against him in any event on his new promise. There was no consideration to support the promise, if one was made, and we do not think the evidence shows that a promise was in fact made. By the Court. — Judgment affirmed.