Sentinel Co. v. Smith, 143 Wis. 377. On February 25, 1908, plaintiff entered into a contract with one E. E. Hull, by the terms of which said Hull was appointed agent and solicitor of the Milwaukee Sentinel at Madison, Wisconsin. The contract provided that it should continue at least six months and that the agent should promptly pay every month for the papers sent him, at the specified price. This action is brought to recover $468.80 on an alleged contract of guaranty signed by the defendant, the material portion of which is as follows: "To the Milwaukee Sentinel, "Milwaukee, Wis. Feb. 25, 1908. "You are hereby authorized to furnish E. E. Hull of Madison, Wis., with copies of the Milwaukee Sentinel for sale, the undersigned hereby agreeing to become responsible to you for the prompt payment of all bills for such papers to the amount of $500.00." The complaint alleged acceptance of the guaranty and reliance thereon by the plaintiff. It further alleged that on and between March 1 and September 1, 1908, said Hull received newspapers from the plaintiff to the amount and value of over $1,300, and that various payments had been made thereon, so that the balance due was that claimed in the complaint. From an order overruling a general demurrer to the complaint defendant appeals. J. Burritt Smith, for the appellant. For the respondent there was a brief by Olin & Butler, and oral argument by W. R. Curkeet. BARNES, J. This court is asked to reverse the order of the circuit court on the following grounds: (1) Because the complaint fails to allege that the plaintiff accepted and relied on the defendant's guaranty. (2) Because the guaranty was limited to $500, and all liability thereunder ceased when the agent, Hull, had paid for the first $500 worth of papers delivered to him under his contract. Sentinel Co. v. Smith, 143 Wis. 377. (3) Because prompt notice of default on the part of the agent was not given to the guarantor; and (4) Because plaintiff continued to extend credit to the agent after he had defaulted in making payments that were due. 1. The first objection is untenable. The complaint alleges that the plaintiff, "by its duly authorized agent, did on said 25th day of February, 1908, and after the execution of said agreement, notify the said defendant that the said plaintiff accepted the said guarantee and relied thereon." This is a sufficient allegation of acceptance of and reliance on the guaranty. Travelers Ins. Co. v. Hallauer, 131 Wis. 371, 111 N. W. 527; White v. Reed, 15 Conn. 457. 2. In construing contracts of guaranty as in construing other contracts, the important question is, What did the parties intend? Both of the parties to this contract concede that the two instruments should be read together. The contract between the plaintiff and the agent, Hull, clearly contemplated that the latter should be supplied with papers for a period of at least six months. Considering the situation of the parties and the language of the guaranty, we think it was intended that the defendant should become responsible for such papers as plaintiff might deliver to its agent during the life of the contract, the liability in no event to exceed the sum of $500. In other words, we hold that the guaranty is a continuing one. A contract precisely similar in terms was so construed by the Michigan court. Detroit Free Press v. Pattengill, 155 Mich. 272, 118 N. W. 927. And while there are some decisions to the contrary, the decided weight of authority is to the effect that such a guaranty should be construed as being a continuing rather than a limited one. Gates v. McKee, 13 N. Y. 232; Rindge v. Judson, 24 N. Y. 64; Mathews v. Phelps, 61 Mich. 327, 28 N. W. 108; Lane v. Mayer, 15 Ind. App. 382, 44 N. E. 73; Nat. Bank v. Thomas, 220 Pa. St. 360, 69 Atl. 813; Paskusz v. Bodner, 75 N. J. Law, 447, 67 Sentinel Co. v. Smith, 143 Wis. 377. Atl. 1040; Fisk v. Rickel, 108 Iowa, 370, 79 N. W. 120; Taussig v. Reid, 145 Ill. 488, 32 N. E. 918. 3. It was not incumbent upon plaintiff to allege that notices of the various defaults of the principal debtor were given to the defendant from time to time as they occurred. If the question of notice was material at all, failure to give it is defensive matter that must be pleaded by way of answer. Mamerow v. Nat. L. Co. 206 Ill. 626, 69 N. E. 504; Swisher v. Deering, 204 Ill. 203, 68 N. E. 517, 518; Furst & B. Mfg. Co. v. Black, 111 Ind. 308, 12 N. E. 504, 508; Davis v. Wells, 104 U. S. 159; 20 Cyc. 1465, and cases cited in note 74. Under the facts stated in the complaint it is, to say the least, doubtful if plaintiff was obliged to give notice to defendant of the successive defaults. Loverin & B. Co. v. Travis, 135 Wis. 322, 326, 115 N. W. 829. In any event, all the law requires is that the notice be given within a reasonable time. See cases cited supra. This court could not say as a matter of law that the time which elapsed in the instant case was unreasonable. We are not informed as to how long the time was. 4. Lastly it is urged that inasmuch as the agent, Hull, was behind in his payments from and after the first month he operated under his contract, the plaintiff was guilty of bad faith and reckless conduct in continuing shipments during the life of the contract, and therefore it cannot recover. The mere indulgence of the creditor in such a case will not discharge the surety. "Beyond the bare neglect of the creditor' to enforce payment or performance from the principal, there must be some act of connivance or gross negligence amounting to wilful shutting of the eyes to the fraud." McKechnie v. Ward, 58 N. Y. 541, 549, and cases cited; Monroe Co. v. Otis, 62 N. Y. 88, 94; Howe M. Co. v. Farrington, 82 N. Y. 121, 128; Douglass v. Ferris, 138 N. Y. 192, 206, 33 N. E. 1041; Benjamin v. Hillard, 23 How. 149, 165, 166; Grafton Allen v. Central Wisconsin Trust Co. 143 Wis. 381. v. Hinkley, 111 Wis. 46, 57, 86 N. W. 859; Hubbard v. Haley, 96 Wis. 578, 589, 71 N. W. 1036; Watertown F. Ins. Co. v. Simmons, 131 Mass. 85. By the Court.-Order affirmed. ALLEN, Respondent, vs. CENTRAL WISCONSIN TRUST COM- Bankruptcy: Exemptions: Life insurance policy payable to wife: 1. A policy of insurance upon the life of the husband, from which the investment feature has been eliminated by the payment of the surplus to the insured at the end of the tontine period, and which remains strictly a paid-up policy of life insurance payable to the wife, is exempt from the claims of the creditors of the husband and does not pass to his trustee in bankruptcy; nor does the right or power to change the beneficiary, reserved by the terms of the policy to the insured, pass to such trustee. [2. Whether the wife, as beneficiary in such a policy, has the sole, absolute, and indefeasible title thereto, under sec. 2347, Stats. (1898), notwithstanding the reservation in the policy of the right of the insured to change the beneficiary, is not determined.] 3. Assuming that in such a case the insured husband has the right to change the beneficiary, his exercise of that right after he has been adjudged a bankrupt would not convert the policy into property which would then pass to the trustee, it having been exempt at the time of such adjudication. 4. The fact that such a paid-up policy shares in annual dividends, the amount of which is likely to vary from year to year, does not destroy its essential character as a purely life insurance contract, the dividend being a mere incident of the policy, the right to receive which is in the beneficiary. APPEALS from a judgment of the circuit court for Dane county: E. RAY STEVENS, Circuit Judge. Reversed. [OCT Allen v. Central Wisconsin Trust Co. 143 Wis. 381. Action of replevin to recover a policy of insurance issued by the Northwestern Mutual Life Insurance Company of Milwaukee upon the life of Philip Allen, Jr., February 21, 1888, for the sum of $2,000. The policy provided for the payment of an annual premium of $118.34 for ten years. At the end of twenty years, and prior to the time plaintiff was made the beneficiary, the insured exercised an option to withdraw in cash the accumulated surplus, then amounting to $705.31, apportioned by the company to this policy, and it was then continued as a fully paid-up life insurance policy for the sum of $2,000 and became entitled to annual dividends until all contributions to the surplus fund had been returned. The annual dividend for 1910 amounted to $11.40. The value of the policy at the time of the commencement of the action was $1,159.83. From the time the policy was issued until February 23, 1908, it was payable to the executors, administrators, or assigns of Philip Allen, Jr. On that day, at the request of the insured, the plaintiff was made the beneficiary, and the following indorsement placed upon the policy by the company: "Milwaukee, Wis., Feb. 27, 1908. "At the request of the insured, dated February 23, 1908, Edith L. Allen, wife of the insured, is hereby made beneficiary in this policy, subject to the right of the insured to change beneficiary as provided on the second page of this policy. If no beneficiary survive the said insured, payment shall be made when due to the executors, administrators, or assigns of the said insured." The second page of the policy contained this provision: "The insured may, subject to the rights of any assignee, change the beneficiary or beneficiaries at any time during the continuance of this policy by filing with the company a written request accompanied by this policy; such change to take effect upon the indorsement of the same on the policy by the company." On November 20, 1909, said Allen was adjudged a voluntary bankrupt, and thereafter the defendant was duly |