Lutz v. Dunn , 189 Wis. 325 ( 1926 )

Eschweiler, J.

The judgment below cannot be supported on any theory of novation, it being undisputed that Dunn did not at any time release or agree to release Paster-nick from the judgment obligation, and there was no showing of any express or implied agreement that there should be such novation by the required three, the creditor, the old and new debtors. Peters v. Kanzenbach, 175 Wis. 602, 604, 185 N. W. 197; Elkey v. Seymour, 169 Wis. 223, 229, 172 N. W. 138; T. W. Stevenson Co. v. Peterson, 163 Wis. 258, 261, 157 N. W. 750; Bishop-Babcock-Becker Co. v. Keeley, 160 Wis. 546, 548, 152 N. W. 189; Hemenway v. Beecher, 139 Wis. 399, 401, 121 N. W. 150; 20 Ruling Case Law, 366; L. R. A. 1918B, note on p. 113. Neither can it be upheld, an agreement to such effect with Pasternick being absent, upon the mere oral promise of Luts and Zell to Dunn to pay to him Pasternick’s judgment, because of the statute of frauds, sub. (2), sec. 241.02 (formerly sec. 2307), Stats. State Bank of Eastman v. Rawson, 182 Wis. 422, 433, 196 N. W. 779.

The trial court must have based his determination that Luts and Zell were to pay Joseph Pasternick’s obligation to Dunn arising from his judgment upon, and only upon, a theory that, at some time, the Pasternicks, Luts, and Zell agreed that such should be done as part of the transaction between them. And this upon the established doctrine in this state that a binding promise between two persons for the'benefit of a third may be enforced by the latter. Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440; Smith v. Pfluger, 126 Wis. 253, 262, 105 N. W. 476; Wetutzke v. Wetutzke, 158 Wis. 305, 148 N. W. 1088; Sedgwick v. Blanchard, 164 Wis. 421, 424, 160 N. W. 267, and cases there cited; Guardianship of Thienhaus, 175 Wis. 526, 532, 185 N. W. 531.

We are satisfied, however, that the record does not support or warrant any such theory.

The testimony is all to the effect that when the quitclaim deed and note to Mrs. Pasternick were executed and the $500 in cash paid to Joseph Pasternick on Saturday afternoon, July 22d, the Dunn judgment was not within the contemplation of the parties as being part of the transaction; the provisions of the only writing purporting to give the terms of the contract, viz. the quitclaim deed, clearly excluded it; the testimony of the only witnesses on the trial present.on July 22d, Okoneski and Zell, expressly deny it; the existence of the judgment was not discovered until Oko-neski examined the record on Monday morning, July 24th, and then informed Luis and Zell; and finally, there is no evidence that Lutz, Zell, and the Pasternicks met again after the Saturday afternoon to malee a new or modified agreement to include the Dunn judgment in the liabilities to be assumed by Luts and Zell.

Other and surrounding circumstances clearly negative the making of any arrangement such as was found by the trial court to have been made. Luts and Zell, in full consideration for obtaining immediate title and possession of the farm and personal property, were to pay certain specified debts aggregating the amount mentioned in the quitclaim deed; to pay, and they did pay,-Joseph Pastemick $500 in cash; and to give, and they did give, their $1,000 promissory note to Mrs. Pastemick. This note was, on Monday, July 24th, pledged by Mrs. Pastemick at the Mosinee State Bank as collateral on her new note then given to the bank.' If Luts, Zell, and the Pasternicks on Monday in fact had so materially altered the arrangements of Saturday as to now add such a substantial additional obligation on the part of the one and such a substantial reduction of the other’s debt, it is more than strange and without explanation why no effort was made to have a new writing showing- this change and a return of the $500 cash payment or a reduction in the amount of the note to Mrs. Pastemick. Furthermore, the testimony is that the deed was not recorded and was kept all the time by another creditor of Pastemick and by him turned over to Okoneski, who produced it on the trial. While it is true that the Dunns, testify that they saw the quitclaim deed in Luts’s possession and read it, yet if they did so read they could not but have seen that it expressly provided that Luts and Zell should pay only certain obligations of Pastemick and those being other than the Dunn judgment.

From the record we are satisfied that there is no sufficient proof of any agreement between the parties interested in the land contract whereby Dunn’s judgment was to be paid in full by Luts and Zell or whereby the right to foreclose the land contract was extinguished.

By the Court. — Judgment reversed, and the cause remanded for further proceedings.