Instead, Hoida claims support for its position from Kornitz v. Earling Hitler, Inc., 49 Wis. 2d 97, 181 N.W.2d 403 (1970), which allowed a purchaser of an apartment building a trial to resolve its misrepresentation and negligence claims against a mortgage lender. It also cites Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis. 2d 660, 287 N.W.2d 742 (1980), which supported a prior court's finding that a construction project lender had guaranteed payment to a swimming pool dome subcontractor. Neither case persuades us.
The court of appeals affirmed the judgment without a discussion of the individual defendants' liability under the guaranty. The determination of whether an instrument is intended to be a guaranty is one of fact. Klein-Dickert Oshkosh v. Frontier Mortgage Corp., 93 Wis.2d 660, 668, 287 N.W.2d 742 (1980). Here, however, it is not in dispute that the instrument is a guaranty.
When the trial court acts as the finder of fact, it is the ultimate and final arbiter of the credibility of witnesses. Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis.2d 660, 663, 287 N.W.2d 742, 743 (1980). When more than one inference can be drawn from the credible evidence, we must accept the inference the trier of fact has drawn.
A guaranty is a contract "'to become responsible for the fulfillment of an agreement of another, to secure, to answer for the debt, default, or miscarriage of another.'" KleinDickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis.2d 660, 668, 287 N.W.2d 742, 746 (1980) (quoting Mann v. Erie Manufacturing Co., 19 Wis.2d 455, 459, 120 N.W.2d 711, 714 (1963)). A fraud is "extraneous" to the contract when it "concerns those matters whose risk and responsibility were not expressly or impliedly dealt with in the contract."
A guaranty is a contract "`to become responsible for the fulfillment of an agreement of another, to secure, to answer for the debt, default, or miscarriage of another.'" Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis. 2d 660, 668, 287 N.W.2d 742, 746 (1980) (quoting Mann v. Erie Manufacturing Co., 19 Wis. 2d 455, 459, 120 N.W.2d 711, 714 (1963)). Because a guaranty is a contract, "[t]he rules governing the construction of contracts apply."
See, e.g. , Lemke v. Lemke , 2012 WI App 96, ¶55, 343 Wis.2d 748, 820 N.W.2d 470 ("[A]n appellate court does not find facts."); State v. Turner , 136 Wis.2d 333, 343, 401 N.W.2d 827 (1987) ("In general, we are bound not to upset the trial court's findings of historical or evidentiary fact unless they are contrary to the great weight and clear preponderance of the evidence."); Klein-Dickert Oshkosh, Inc. v. Frontier Mortg. Corp. , 93 Wis.2d 660, 663, 287 N.W.2d 742 (1980) ("[W]hen the trial judge acts as the finder of fact, he is the ultimate and final arbiter of the credibility of witnesses. When more than one inference can be drawn from the credible evidence, the reviewing court must accept the inference drawn by the trier of fact.").
¶ 44. A guaranty is a contract. Klein-Dickert Oshkosh Inc. v. Frontier Mortgage Corp., 93 Wis. 2d 660, 668-69, 287 N.W.2d 742 (1980). "The ultimate aim of all contract interpretation is to ascertain the intent of the parties."
II. Trial Court's Findings As to the rules applicable to the review of a circuit court's finding of fact, we refer to Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis.2d 660, 663, 287 N.W.2d 742 (1980), where this court stated: "We believe it is well-established that findings of the trial court will not be upset on appeal unless they are clearly erroneous and against the great weight and clear preponderance of the evidence.
" Estate of Brandenburg, 13 Wis.2d 217, 225, 108 N.W.2d 374 (1961). See also, Estate of Beale, 15 Wis.2d 546, 556, 113 N.W.2d 380 (1962); Ivers Pond Piano Co. v. Peckham, 29 Wis.2d 364, 371, 139 N.W.2d 57 (1966); Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis.2d 660, 287 N.W.2d 742 (1980). The cases cited by the majority do not support its statement that when the trial court's finding is based upon undisputed evidence, the finding becomes a conclusion of law and this court is not bound by a finding of the trial court.
The court found, and the video shows, that Ostrowski was patient in answering Topping’s repeated questions and "went above and beyond in terms of communicating with" Topping. The court also found that Topping’s failure to respond was "tantamount to a no or a refusal" after so many minutes of equivocating. It was reasonable for the court to infer from Topping’s extended equivocation and refusal to answer either yes or no in response to Ostrowski’s direct questioning that Topping had refused the test. See Welytok v. Ziolkowski , 2008 WI App 67, ¶27, 312 Wis. 2d 435, 752 N.W.2d 359 ("Where ... more than one reasonable inference can be drawn from the credible evidence, we accept the reasonable inference drawn by the circuit court sitting as fact finder."); Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp. , 93 Wis. 2d 660, 663, 287 N.W.2d 742 (1980) (appellate court is bound by the circuit court's choice among reasonable inferences from credible evidence). See also State v. Brar , 2017 WI 73, ¶133, 376 Wis. 2d 685, 898 N.W.2d 499 (Abrahamson, J., dissenting) (where video recording shows that the defendant was "stalling," the defendant by his conduct refused to allow the chemical test) (citing State v. Rydeski , 214 Wis. 2d 101, 107, 571 N.W.2d 417 (Ct. App. 1997) (driver’s stalling conduct qualified as refusal)); Village of Elkhart Lake v. Borzyskowski , 123 Wis. 2d 185, 191, 366 N.W.2d 506 (Ct. App. 1985) (driver’s conduct that prevented officer from obtaining accurate breath sample qualified as refusal).