Muender v. Muender

Ro'senberry, J. It is the contention of the adminis-tratrix that the note in question was to be payable out of the proceeds of the land contract and not otherwise, and that it did not constitute a personal obligation on the part of George H. Muender. It is argued that the clause: “This note represents the equity of payee in a land contract between Geo. H. Muender and Andrew Browning and wife for the north half of section 3, town of Ellenboro, Wis., dated-, 1920, and is to be paid out of the first payments on the principal of said contract. “If contract is renewed, note is to be renewed,”— makes the payment conditional. It is also claimed that the note is without consideration. It is the contention of the claimant that the note was given to her by George PI. Muen-der and was to be payable absolutely; that the time of payment might be accelerated if sufficient payments were made by the Brownings under their contract, but that in all events it should be paid by the maker on or before five years from date. Considerable testimony was offered by the admin-istratrix as to the exact nature of the agreement between Fred Muender, Ella Muender, and George PI. Muender at the time of the settlement. So far as this evidence tended to vary or contradict the terms of the written contract it was not admissible. The clause last above quoted is not ambiguous nor is a reformation sought. Several sections of the Negotiable ‘Instrument Act are cited to our attention. These are not applicable because the instrument is not a negotiable bill. By its provisions judgment may be entered at any time after delivery whether the note is due or not. It is therefore non-negotiable. Wisconsin Yearly Meeting v. Babler, 115 Wis. 289, 91 N. W. 678. The Negotiable Instrument Act has no application to nonnegotiable instruments. Westberg v. Chicago L. & C. Co. 117 Wis. 589, 94 N. W. 572. It is argued that this case falls within Harder v. Rein [421] hardt, 162 Wis. 558, 156 N. W. 959. It is not claimed that there was a contemporaneous oral agreement' relating to delivery as in that case.' The negotiations of the parties were all had prior to the execution of the instrument by George H. Muender to Ella Muender. There is no claim of a conditional delivery. If the proof tended to show, as the administratrix claims, that it was agreed that the note should be paid only from proceeds of payments made by the Brownings, it would tend to vary and contradict the terms of the contract entered-into between the parties,and could not properly be received for. that purpose. The trial court correctly held that by the terms of the instrument it was to be paid in any event at the end of five years, and was to be paid sooner if the payments made upon the Browning contract were sufficient in amount for that purpose. The agreement .to renew was contingent upon the renewal of the Browning contract. The renewal of that contract was made impossible by the foreclosure of the land contract by the defendant. The agreement by which Fred Muender was released from obligation to repay his wife the amount loaned him and George H. Muender was. discharged of all liability.to his brother under the contract was a good and sufficient consideration for. the execution of the instrument by George H. Muender to plaintiff. By the Court. — -Judgment affirmed.