#### New Home Sewing Machine Company, Appellant, vs. Simon, Respondent.

*January 28*—

February *18, 1902.*

*Guaranty: Conditional delivery: Waiver: Evidence: Court and jury: Appeal and error: Former adjudication: Instructions to*jury."

1. In an action on a contract of guaranty, delivered contrary to an agreement -whereby it was not to take effect until executed by another surety, a judgment for plaintiff was reversed. On a retrial, evidence, introduced for the first time, tended to show that before the guaranty had been accepted, or any goods furnished thereunder, the obligee’s agent visited the guarantor to obtain his signature to a property statement; that the guarantor took the paper, signed the statement as requested, and handed it back to the agent, informing him that it was conditionally signed, and was not binding as a contract of guaranty until signed by another surety. *Meld,*that the question whether the guarantor expressly or impliedly waived the condition under which he first signed the guaranty, was for the jury.

2. Where, after a decision on appeal, a cause is retried, error cannot be assigned because the trial court followed the decision of the appellate court.

3. In an action against a guarantor, evidence of a conversation between the principal debtor and the agent of the obligee, the guarantor not being present, is incompetent and immaterial.

*268*4:*Where no instructions to the jury are requested, and no complaint made that the instructions given were not proper so far as they went, except one, which followed the decision of the supreme court rendered on a former appeal in the same action, error cannot he assigned because the court did not fully instruct the jury on all the material issues.

15. Waiver, when put forward as a ground of action or as a defense, is affirmative matter to be established by the party alleging it.

Appeal from a judgment of tbe circuit court for LaCrosse •county: .Chas. M. Webb, Judge.

*Affirmed.*

Action to recover on a contract of guaranty. Tbe instrument on its face purports to bave been made by defendant August 27, 1895, guarantying plaintiff payment for goods sold by it to R. L. 0. Holbek to1 the amount of $2,000. Tbe ■defense, in tbe main, is tbat tbe paper was signed on condition tbat it should not be binding on defendant till another signer thereto should be obtained. Tberfe was evidence tending to prove tbat tbe paper was so signed and left with Hol-bek to be delivered when another signer should be obtained; that it was delivered. in violation of such condition; tbat plaintiff did not accept ;t and furnish any goods on tbe faith thereof till it communicated with defendant through its agent; tbat tbe agent saw defendant and requested him to ■sign a property statement which was upon tbe paper and deu •signed to be a part of tbe completed instrument; tbat defendant then informed such agent that *the*paper was signed on condition tbat it was not to take effect till another signer .should be obtained; tbat be signed tbe property statement as requested, and banded tbe paper back to tbe agent informing .him of tbe condition as aforesaid; tbat thereafter, without any additional signer having been obtained to tbe paper, plaintiff sold goods to ITolbak, by which he became indebted to plaintiff so as to render defendant liable on tbe guaranty for tbe full sum of $2,000 if liable at all.

At tbe close of tbe evidence it was claimed on tbe part of plaintiff tbat tbe transactions between plaintiff’s agent and *269defendant constituted a new and unconditional execution^ and delivery of the contract of guaranty to plaintiff. A directed verdict was accordingly requested, which was denied.. On the other hand defendant’s counsel claimed that such circumstances and the other evidence showed conclusively that, such contract was conditionally executed, that the condition-, was insisted upon when the property statement was signed, and that plaintiff sold the goods to' Holbek with full knowledge of all the facts affecting the validity of the guaranty. A nonsuit was accordingly requested, which was denied. The-jury rendered a general verdict for defendant.

*George H.*Gordon> for the appellant.

Eor the respondent there was a brief by *Winter & Fsch,.*and oral argument by *Frank Winter.*

Maeshaxi., J.

The principal questions governing this-case were settled on the former appeals reported in 104 Wis. 120, and 107 Wis. 368. Very little need be said now. No-new question is presented, as it seems, except in respect to-some small matters of detail in the trial. The main contention of appellant’s counsel is that what happened at the meeting between plaintiff’s agent and respondent rendered the occurrences between the latter and Holbek when the guaranty was signed immaterial; that respondent, at such meeting, in-effect re-executed the paper and gave it to the agent unconditionally. If the evidence sustains that contention, certainly a verdict should have been directed in appellant’s favor; but it does not. There is no need to refer to the evidence in detail. It is sufficient to say that it tends to show that appellant’s agent visited respondent to obtain his signature to the-property statement; that appellant had not then accepted the-guaranty or furnished any goods on the faith of it; that respondent took the paper into his hands, signed the property-statement as requested, and handed the instrument back, to the agent, informing him that it was conditionally *270signed and was not to be binding as a contract of guaranty till signed by another surety. The best that can be said for appellant is that the evidence would permit, reasonably, a finding either way as to whether, at the interview between respondent and appellant’s agent, the former waived the condition imposed when he signed the paper and left it with Holbek, so that it was a question for the jury whether there was such a waiver or not.

Counsel insists that it was the duty of respondent, when the paper was placed in his hands hy the agent, to have retained it, or else, in handing it back to the agent, to have distinctly stated that no goods should be furnished to Holbek on ■the strength thereof till another signer should be obtained; and that his failure to do¡ either was a waiver of the condition with which the paper was signed and left with Holbek. That •question having been twice heretofore decided in favor of respondent, it seems that it may well be considered closed •beyond hope for reconsideration. On both of the former appeals it was distinctly held that if, at the meeting between respondent and appellant’s agent, the latter was informed that •the paper was conditionally signed, that was sufficient to charge appellant with notice that it was not to be a binding •obligation upon respondent in advance of compliance with the condition. A failure to follow the decision of the court in that regard upon the second trial was the primary reason why a third trial was made necessary. On the first appeal this language was used in the opinion:

> “The fact that the agent notified defendant that plaintiff would extend credit to Holbek did not call for any protestation from him that he would not be bound by the letter of guaranty. When knowledge came to plaintiff, if it did so come, that the letter of guaranty had been wrongfully delivered, it had no right to ignore the fact. It proceeded thereunder at its peril, and, unless defendant is guilty of some act that would amount to an estoppel, is without remedy.”

*271Tbe situation now is tbis: On tbe second trial tbe jury were instructed tbe same as counsel for appellant now contends tbe law to be as regards the duty of respondent at tbe time appellant’s agent presented tbe paper to him. A third trial was made necessary by reason thereof. He now says that compliance by tbe trial court with tbe decision of tbis court upon the former appeals was error and that a fourth trial should be granted. Tbe mere statement of the proposition sufficiently answers it against appellant’s contention. Tbe court is powerless to review the question presented even if there is any reasonable doubt of its correctness,, and there is none. We are not immindful of tbe new element brought into tbe case on tbe last trial, of tbe signing of tbe property statement. That did not change tbe situation. Tbe question was still for tbe jury as to whether respondent then notified the appellant’s agent of tbe condition with which tbe contract of guaranty was signed and left with Holbek, and whether be expressly or by implication waived such condition.

Error is assigned because tbe court struck out tbe evidence of appellant’s agent as to some conversation be bad with Hol-bek before be visited respondent on the occasion of tbe latter’s signing tbe property statement. We are not able to perceive bow such conversation, in tbe absence of respondent, was competent as against tbe latter. What Holbek said to tbe agent was mere hearsay as regards tbe issues in tbis action, and what tbe agent said to Holbek was certainly immaterial. Tbe conversation bad no legitimate bearing upon what actually occurred between tbe agent and respondent.

Error is «assigned because tbe court did not fully instruct, tbe jury on all tbe material issues. No subject is definitely pointed out upon which tbe court did not sufficiently instruct tbe jury, except one as to which tbe evidence was stricken out on appellant’s motion before tbe fcause was submitted to tbe jury. No reason is perceived for complaint upon appellant’s part in any event, because no instructions were requested by *272its counsel, and no complaint is made but that the instructions given were proper so far as they went, except one to the effect that the burden of proof was upon plaintiff to satisfy the jury that the condition upon which the guaranty was originally signed was subsequently waived. It is a sufficient answer to that to say that the court was bound to so instruct the jury, — to conform to the decisions of this court on the former appeals. Moreover, it is elementary that waiver, when put forward as a ground of action or as a defense, is affirmative matter to be established by the party alleging it. The ease appears to have been carefully tried in strict conformity to the law as previously settled for the purposes thereof.

*By the Court.*— Judgment affirmed.