Weinbergen v. Bartels , 1927 Wisc. LEXIS 208 ( 1927 )

Doerfler, J.

The foregoing facts in substance were incorporated in the court’s findings, and are supported by the great weight of the credible evidence in the case.

Whether Roy or others were financially responsible or not, under the contract dated November 28th the plaintiffs had agreed to accept his or their note, and not the note of McConnell & Wilson or of any other person or persons. The plaintiffs, therefore, came prepared and had a bona fide intention to carry out the contract in accordance with its terms, and it was the defendant Bartels who appeared upon the scene and attempted to substitute the personal liability of McConnell & Wilson in place of Roy and of Roy and others. It is a common experience in business transactions that notwithstanding a debtor may secure his indebtedness by means of collateral security, the creditor places more reliance upon the individual responsibility of the debtor than upon the security furnished, and in such cases the collateral constitutes merely additional security. That the plaintiffs relied largely upon the personal responsibility of Roy or Roy and others is made manifest by the terms of the agreement, pursuant to which Roy or Roy and others were to be the makers of the note. Under such circumstances it is not surprising that the plaintiffs were highly exasperated when an attempt was made by Bartels to substitute the personal responsibility of McConnell & Wilson in place of Roy or Roy and others. Ip fact, so great was their disappointment by the'attempted breach of the contract on the part of Bartels that they were ready to cancel the entire transaction.

Bartels fully realized the gravity of the situation. He had contracted to purchase the valuable farm of the plaintiffs, consisting of 240 acres, at a price and with terms and conditions entirely satisfactory to him. When the contract was made, farm lands quite generally had reached the peak prices, and there was no indication then apparent of a break in values. He was not dispos :d to relinquish his rights under the contract. He realized that he was in a position then where of necessity he must either accede to the plaintiffs’ request or lose the benefits of his bargain. , The plaintiffs, having negotiated the sale of their 240-acre farm to the defendant Bartels, however were satisfied with the financial responsibility of Bartels. Therefore it occurred to them that if the personal responsibility of Bartels were substituted in place of that of Roy or Roy and others, the transaction might safely be concluded. Under these circumstances the right to impose and insist upon new terms as a modification of the original contract rested mainly in the plaintiffs, and they exercised such right, and such terms were consented to by Bartels.

An issue, therefore, of law is squarely presented, whether presentment for payment and of notice of nonpayment may be waived orally by the indorser at the time the indorsement is made, and whether such waiver can be established by oral testimony. . This issue was squarely presented to this court in an early case (Worden v. Mitchell, 7 Wis. 161), and in the opinion of the court was decided adversely to the contention here made by counsel for the defendant Bartels. The ruling in the fflorden Case has never been overruled by this court, as far as we are able to determine; on the contrary, it was substantially affirmed in principle in the case of Waterproof P. & B. Co. v. Van Buren, 182 Wis. 640, 197 N. W. 338.

While there appears to be an irreconcilable conflict in the authorities outside of Wisconsin upon this proposition, it is also apparent that “the trend of modern decision and legislation is in favor of the doctrine that a waiver of presentment at the time of the indorsement may be proved by parol evidence. Indeed, it seems that the duty of demand and notice in order to hold an indorser is not a part of the contract, but a step in the legal remedy, that may he waived at any time.” 3 Ruling Case Law, 1185, and cases cited in note. (Italics ours.)

In 8 Corp. Jur. p. 698, § 980, it is said:

“The time at which a waiver is made is immaterial. It may be made at the time the note is executed; at the time of indorsement; before, at, or after maturity; or even after commencement of a suit thereon; or after judgment and pending notice for a new trial.”

In 8 Corp. Jur. p. 696, §§ 976 and 977, it is said: “The right of any party to a demand or notice, being a condition for his benefit, may be waived by him.”

The trial court also held in its opinion: “That after the note became due the defendant requested the plaintiffs to extend the time for payment, which request amounted to a waiver of presentment for payment and notice of nonpayment.” The evidence amply supports this conclusion of the trial court, which was substantially incorporated in its findings. See the following cases, cited in plaintiffs’ brief: Parson v. Dickinson, 23 Mich. 56; Belch v. Roberts, 191 Mo. App. 243, 177 S. W. 1062; Farmers & Merchants State Bank v. H. E. Behrens Mfg. Co. 50 N. Dak. 850, 198 N. W. 467; Farmers & Merchants’ Nat. Bank v. Brown, 131 S. C. 265, 127 S. E. 365; Engle v. Shepherd, 100 Okla. 200, 229 Pac. 208; Yaeger v. Farwell, 13 Wall. (79 U. S.) 6; Sweetser v. Jordan, 216 Mass. 350, 103 N. E. 905.

The judgment of the lower court must therefore be affirmed.

By the Court. — It is so ordered.