2006AP1095 Eli Environmental Contractors, Inc., v. 435 Partners, LLC.

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Where both parties to a promissory note had immediate obligations, the note was supported by consideration and is valid.

“The promises which the trial court found constituted consideration for the Note were bilateral promises. Both Eli and 435 Partners benefited from the reciprocal promises to perform, and assurance of, future work. The Note was the guarantee to Eli that future work would be forthcoming. Business entities, even those involving family members, do not generally issue and deliver valuable negotiable instruments to another business for no reason. 435 Partners advanced numerous explanations for the Note which the trial court found were either unpersuasive or not credible. Likewise, the trial court found that 435 Partners had failed to establish by clear and convincing evidence that the Note lacked consideration. We agree.

“Finally, 435 Partners argues that the time at which consideration must be measured is the moment of performance, not the moment in which the contract is made. Thus, 435 Partners argues, because Eli’s promise to do work was never performed, 435 Partners has received no consideration and is not bound by the Note. Again, 435 Partners erroneously relies on First Wisconsin in support of this theory. As we have explained, the check credit agreement in First Wisconsin had no reciprocity of obligation until each party chose to do something it had no obligation to do. Id., 52 Wis. 2d at 7-8. Here, however, Eli had an immediate obligation to do work if 435 Partners asked them to do so, and 435 Partners had an immediate obligation to offer Eli work and to honor the terms of the Note. The immediacy and unconditional nature of these obligations remove this case from the realm of illusory unenforceable promises.”

Affirmed.

Recommended for publication in the official reports.

Dist. I, Milwaukee County, Sankovitz, J., Kessler, J.

Attorneys: For Appellant: Carter, Rodney W., Waukesha; Long, J. Michael, Waukesha; Domaszek, John, Waukesha; For Respondent: Machulak, John E., Milwaukee