John A. Tolman & Co. v. Smith

WiNslow, C. J. The complaint alleges in substance that Otto went to work for plaintiff’s remote assignor under an agreement to repay advances made to.him; that at the same time the defendants under seal guaranteed the performance of that agreement; that a considerable amount of advances were thereafter made to said Otto by said remote assignor and became due; that thereafter all the assets, accounts, and bills receivable of the said assignor were sold, assigned, and transferred to third persons, who sold and transferred them to the plaintiff, and that the balance of said Otto’s indebtedness is still due and owing to the plaintiff. Wherein these facts fail to make a cause of action we are unable to understand. The indebtedness of Otto to the remote assignor existing at the time of the transfer of assets, together with the liability of the guarantors to pay that indebtedness if Otto did not do so, were clearly a part of the assets of said remote assignor, and were assigned and transferred by the two assignments set forth in the complaint and thus became the property of the plaintiff. The guaranty bond was not and could not be assigned generally so far as future defaults by Otto were concerned, but the cause of action which had arisen in favor of the remote assignor, and the-guaranty bond so far as it protected that cause of action, were assigned. Being a cause of action which survives to personal representatives, it is on familiar principles assignable. Webber v. Quaw, 46 Wis. 118, 49 N. W. 830. The defendants’ agreement in this case not only contained a guaranty that Otto should pay his indebtedness, but a further provision that the sureties would themselves pay any amount which might become due on the contract. It is not necessary to consider, therefore, whether a surety who makes simply a collateral agreement of guaranty would be discharged of liability by reason of the fact that the statute of limitations had barred an action against the principal on the original debt. Here was plainly an independent promise and not. [365] merely a collateral agreement. It was imcler seal, and Renee an action thereon is not barred until twenty years if the canse of action arose within the state, or ten years if it accrued without the state. Secs. 4220, 4221,-Stats. 1913. In either event the time has not elapsed in the present case. By the Oourt. — Order reversed, and action remanded with directions to overrule the demurrer to the complaint.