(dissenting). The burden rests upon the plaintiffs both to allege in their complaint and prove on the trial that there was a legal obligation of the individual defendants upon the guaranty distinct from the obligation *285of the maker of the note. The allegations in the complaint tending to so allege are those to the effect that the individual defendants, “for a valuable consideration,” guaranteed the payment of the same note, and the further allegation that there was expressed on the face of the guaranty the words, “for value received” we severally guarantee. As between the original parties to commercial paper,, while these phrases are sufficient in themselves to make a prima facie showing of liability, nevertheless want of consideration is a perfect defense as it is to any other contract. Remington v. Detroit D. M. Co. 101 Wis. 307, 309, 77 N. W. 178. So that neither of these expressions of themselves precludes the right of a person who on the face of it would seem bound, to show by oral testimony that there was no valid legal consideration, and there is nothing in the words themselves that creates anything in the nature of an estoppel against the person who may have used them to show what the real facts are.
In the first paragraph of the answer the individual defendants say as follows: “And each for himself denies that for a valuable consideration he guaranteed the payment of the note set forth in the first cause of action by indorsing thereon the words of the guaranty set forth in said complaint.” In the second paragraph appears in substance the following as a defense: that the note was given by the defendant corporation to plaintiff “for a pre-existing debt, and that at the time of giving the new note no other or further-obligation was incurred by said defendant, the Wisconsin Grain and Euel Company, by reason of the giving of said note of on account of the guaranty of payment executed by the defendants James H. Webb and F. J. Barber, and denies that said defendants or either of them, at the time or any other time, received any consideration for the execution of the said guaranty contract whatever.”
It is from the allegations last quoted that it is held by the majority opinion that there is sufficient admission of a con*286sideration to warrant judgment against the individual defendants.
It is immaterial on the appeal here by the individual defendants whether or not it sufficiently appears that the giving of the new note for the pre-existing debt was a sufficient valuable consideration between the maker of the note and the-payee, for the question here must be whether or not there is-sufficient to show a valid consideration between the guarantors and the payee. Between these two parties it is essential that the giving of the guaranty should be simultaneous and a part of the transaction embodied in the surrender of the old note and the taking of the new and as a then consideration therefor, or, if the guaranty be subsequent to the-transaction by which the new note takes the place of the old, that there was some new and independent consideration. Bank of Commerce v. Ross, 91 Wis. 320, 324, 64 N. W. 993; Jansen v. Kuenzie, 145 Wis. 473, 475, 130 N. W. 450; International T. Co. v. Mabbott, 159 Wis. 423, 425, 150 N. W. 429.
There is no language in the complaint or answer from, which I can see that either of these two conditions existed.
The plaintiffs contented themselves with alleging in general terms that the obligation of the defendants, if any, was-based upon “a valuable consideration,” instead of specifying, as they well might have, what the exact consideration was. The defendants squarely meet this allegation by a denial that they or either of them at the time, or any other time, received any consideration for the execution of the guaranty contract whatever. This entitles them to a trial upon the-issue of fact thus tendered, and for that reason I think the-judgment should be reversed.
I am authorized to state that Justice Eerwin joins with me in this dissent.