Hallock vs. Yankey and another. This was an action against the defendants to enforce their liability as guarantors of a promissory note. The defense was that the note had been extended by the holder thereof without the consent of the defendants, and consequently that they were released from liability. The evidence was meager, and showed that on the 23d of October, 1891, the Juneau Manufacturing Company, a corporation of Juneau, Wisconsin, borrowed $200 at the Citizens' Bank of Juneau, and executed a note for the same, payable ten days after date, with interest at eight per cent. per annum. The defendant Yankey was the treasurer and financial manager of the Juneau Manufacturing Company, and executed the note on behalf of the company. At the time the note was given, a written guaranty of payment was indorsed upon the back, signed by the defendants Yankey and Hartzheim, both of whom were stockholders in the corporation, and Yankey was, as before stated, the treasurer of the corporation. On the 3d of November, when the note fell due, it was not paid, but the interest was paid in advance for thirty days, and the bank indorsed an extension for thirty days on the back of the note, in consideration of the advance payment of interest. At the time of this extension, both Mr. Yankey and Mr. Hartzheim were present, and Mr. Yankey, acting for the corporation, paid the advance interest, in order to procure the extension; but it does not appear that Mr. Hartzheim actively participated either in the payment of the interest or in the request for the extension. The note was extended several times afterwards, and like agreements of extension indorsed upon the back, and the interest paid in advance each time by Mr. Yankey, as treasurer of the corporation; but the evidence does not show that Mr. Hartzheim had anything to do with the subsequent extensions, or even that he knew of them. The note was transferred to the plaintiff for value, before the commencement of this action. Upon this evidence the court directed a ver Hallock vs. Yankey and another. dict for the defendants, and from judgment upon such verdict the plaintiff appeals. George W. Sloan, for the appellant, argued, among other things, that payment of interest on an overdue note, even for a definite period in advance, will not discharge the sureties. Vilas v. Jones, 10 Paige, 76; Lowman v. Yates, 37 N. Y. 601; Gahm v. Niemcewicz's Ex'rs, 11 Wend. 312; Reynolds v. Ward, 5 Wend. 501; Hosea v. Rowley, 57 Mo. 357; Coster v. Mesner, 58 Mo. 549; Williams v. Smith, 48 Me. 135; Haydenville S. Bank v. Parsons, 138 Mass. 53; Oxford Bank v. Lewis, 8 Pick. 458; Blackstone Bank v. Hill, 10 Pick. 129; Central Bank v. Willard, 17 Pick. 150; Agricultural Bank v. Bishop, 6 Gray, 317. For the respondents there was a brief by Malone & Bachhuber, attorneys, and Ryan & Merton, of counsel, and oral argument by J. E. Malone and E. Merton. WINSLOW, J. As to the defendant Hartzheim there can be no doubt that the verdict was rightly directed. His liability was that of a surety alone, and, upon very familiar principles of law, he was discharged if the time of payment of the note was definitely extended by a valid agreement without his consent. Weed Sewing Machine Co. v. Oberreich, 38 Wis. 325. Whatever may be the fact as to Hartzheim's presence at the time of the first extension of the note, it appears without dispute that the note was definitely extended in consideration of the prepayment of interest a number of times afterwards, without his presence or consent. The payment of interest in advance is a sufficient consideration for the agreement of extension of time. Batavian Bank v. McDonald, 77 Wis. 486. As to Yankey, however, the question is different. The evidence seems to show satisfactorily that he was the acting officer of the corporation, not only in executing and delivering the note originally, but in paying the interest in advance Hallock vs. Yankey and another. at the time of each extension. There is certainly sufficient evidence to justify a jury in finding that he, in legal effect, requested each extension of time, and paid the advance interest in order to secure such extension. It is true that he made such requests and payments in his capacity as an officer of the corporation and on its behalf, and that nothing was said as to his individual liability as guarantor; and the question presented is whether, having requested and consented to the extension on behalf of the corporation, he can be heard to say that he did not thereby consent to the extension in his individual capacity as guarantor. Of course, the obligations of a surety are strictissimi juris. He may stand upon the letter of his contract. He may have knowledge that an extension has been granted to his principal, and the law does not impose on him the duty to speak. 2 Brandt, Suretyship & G. § 345. But the surety is bound by the rules of good faith and fair dealing, as well as other men. If he, as agent for the principal debtor, requests and obtains an extension of time, and pays the consideration for such extension, and nothing is said as to his liability as surety, it is very obvious that the creditor would naturally and almost inevitably conclude that he consents to the extension individually, as well as in his capacity as agent. How many bankers or business men would reason thus, "Yankey has consented to the extension as treasurer of the corporation, but has not consented in his individual capacity, and I must now ask him if he consents as Mr. Yankey"? We think very few would think of drawing such fine lines of distinction. After Yankey requested and procured the extension on behalf of the corporation, and gave no notice to the creditor that he did not consent to an extension in his character as surety, we think that well-known rules of estoppel must be held to prevent him from asserting that he is discharged as surety because of lack of consent. He has actively induced a change of position on the part of his creditor, which In re Will of Bruendl. he will not be allowed to take advantage of, to his creditor's injury. Another question here arises, namely, as to the effect of the discharge of Hartzheim upon the liability of Yankey. While his discharge is, in effect, a discharge by operation of law, still it resulted from the act of the creditor in extending the time of payment without the surety's consent; consequently, it must be given the same effect as a voluntary release. Robertson v. Smith, 18 Johns. 459. There is no doubt but that the provisions of sec. 4204, Stats. 1898, apply to joint sureties as well as to principal debtors, save in so far as they are limited by the proviso and by the terms of sec. 4205. Neither of these limitations includes the present case. Therefore the release of Hartzheim will operate to relieve his co-surety from liability for one half of the debt, that being the proportion which Hartzheim ought to have paid as between himself and Yankey had he not been released. There must be a new trial as to Yankey, but his liability in no event can exceed one half of the note and in terest. By the Court.-As to Hartzheim the judgment is affirmed, with costs, and as to Yankey it is reversed, with costs, and the action is remanded for a new trial. BARDEEN, J., took no part. IN RE WILL OF BRUENDL. January 12—January 31, 1899. (1) Physicians and surgeons: Privileged communications. (2) Transac tions with person since deceased: "Party." 1. Information acquired by a physician while examining a person, not for the purpose of curing or helping her, but to determine the question of her mental competency with a view to an application for In re Will of Bruendl. her release from guardianship, is not "information necessary to enable him to prescribe for such patient as a physician,” within the meaning of sec. 4075, R. S. 1878, and the physician may, therefore, give testimony thereof. 2. An officer of a corporation which is a party to an action in which the opposite party claims under a deceased person is not himself a "party" so as to be incompetent, under sec. 4069, R. S. 1878, to testify in respect to transactions had by him personally with such deceased person. APPEAL from a judgment of the circuit court for Ozaukee County: JAMES J. DICK, Circuit Judge. Reversed. 1. The proposed will of the deceased was contested on the ground of mental incompetency and of undue influence. The case was tried in the circuit court for Ozaukee county, sitting with a jury. A verdict of the jury in favor of competency, and against undue influence, was rendered, and a finding by the court was made to the same effect, and the will admitted to probate. The contestants offered the testimony of two physicians, partners, one of whom had been the attending physician of the deceased, and to whom her son-in-law applied to make an examination of her mental condition about four months before the date of the will, to ascertain as to her mental competency to care for her own property, with a view to applying to the county court for release from guardianship, under which she had been placed with her own consent. She submitted herself to the examination for this purpose. The court, after ascertaining that the knowledge of these physicians was thus obtained, excluded their testimony as privileged, under the provisions of sec. 4075, R. S. 1878, which constituted the first error assigned. 2. Among the bequests was one of $400 to a church. The proponents offered as a witness, to prove mental competency by interviews and conversations with the deceased, the pastor of that church, who was vice-president of its corporation. He was objected to as a party in interest, and incompetent |