Potter v. Gronbeck , 117 Ill. 404 ( 1886 )

Mr. 'Chief Justice Scott

delivered the opinion of the Court:

’There would seem to be one reason why the present judgment should be affirmed, without- any reference to the merits of the controversy. It is ■ seen the suit was commenced by “Lauchlin McLean, for the use of Delonas W. Potter.” After-wards, by leave of court granted for that purpose, Lauchlin McLean was dismissed out of the suit, leaving Delonas W. Potter the only plaintiff, and since then the suit has progressed in the name of Potter, and he alone appealed frpm the decision of the trial court. It is obvious there can be no recovery against defendants, on the common counts, for rent due from the lessees. If any recovery could be had, it must he upon their guaranty of the payment of the rent, and the performance of the covenants of the lease. But can Potter recover on that guaranty in his own name? That depends upon the fact whether the alleged guaranty is assignable under our statute, so as to enable the assignee to maintain a suit upon it in his own 'name. It is thought it is not assignable, as is negotiable paper, so as to vest the legal title in the assignee. It is true that under the statute of this State any instrument in writing, for the payment of money or articles of personal property, is assignable, as are bills of exchange, so.as absolutely to transfer and vest the property thereof in each and every assignee succeeding. But the guaranty declared upon is not such an instrument. It is to be observed defendants undertook to “guarantee the payment of the rent and the performance of the covenants by the party of the second part in the within lease covenanted and agreed, in manner and form as in said lease provided, for three years from the date of occupancy." One objection that appears upon the face of the -instrument is, it is not an unconditional promise or obligation for the payment of money. Before any rent could be -recovered, the fact of occupancy by the lessees must be-averred and proved. An instrument depending upon extrinsic proof, before it becomes a binding obligation for the payment- of money, is not assignable, under the statute, so as to vest absolutely the legal title in the assignee. (Kingsbury v. Wall, 68 Ill. 311.) But a graver objection appears on the face of the guaranty. It -is, that the undertaking to guaranty the payment of the rent and the performance of the covenants of the lease, is an entirety, constituting a single agreement. Certainly that clause that obligates defendants to guaranty the “performance of the covenants” of the lease by the lessees, is not assignable, under the statute, as are bills of exchange. It is not for the payment of. money or articles of personal property. If the agreement contained no covenant other than for the payment of the rent, it would no doubt be assignable, and the assignee might maintain an action upon it in his own name. But this instrument contains other covenants constituting one agreement, and it is not allowable to assign one covenant in an instrument containing other covenants not assignable. That would be to split up a cause of action, which the practice will not permit. In no event can the present plaintiff recover on the alleged guaranty of defendants.

But without considering all the questions made on the argument, the decision affirming the judgment of the Appellate Court may be placed on the distinct ground, one of the guarantors (Levin) revoked his guaranty, without the knowledge or consent of the other guarantors, before the lease was delivered, and so notified both the lessor and the lessees; yet the lessor, after being notified, accepted the lease and guaranty without communicating that fact to the other guarantors. No importance is attached to the amended bill of exceptions, in which the trial judge recites, “that in announcing the finding for defendants, the court did not consider the evidence contained in the bill of exceptions.” The process of reasoning by which the trial court may have reached its conclusion is a matter of no consequence. The court heard the testimony offered, and the presumption is it was duly considered, and certainly the judge who tried the cause instead of a jury, will not be heard to say he disregarded his duty in that respect, and refused to consider the evidence introduced, any more than a jury would be permitted to make such a declaration.

The alleged guaranty was declared on in the special count of the declaration as the joint and several obligation of defendants. The fact of the joint liability of defendants, as well as their several liability, was distinctly put at issue by the pleadings. Upon some of the issues made, the evidence was squarely conflicting. There was evidence tending to show that Levin, whose name appears as one of the makers, revoked his guaranty before the lease was delivered or accepted by the lessor; that the other' guarantors had. no knowledge of such revocation, and never consented to it, and that after being so notified, the lessor accepted such lease and guaranty without notifying the other guarantors of the revocation made by their co-guarantor. ■ As the evidence tends to establish these facts, it will be understood that both the trial and Appellate Courts, in finding the issues for the defendants, as the record shows was done, found every fact the evidence tends to establish, in favor of defendants, and the finding of facts by the latter court on all controverted questions of fact, is, of course, . conclusive upon this court. The law is, a guarantor may revoke his guaranty at any tim.e before it is delivered or accepted, and if the lessor in this case afterwards accepted the guaranty, with knowledge of its revocation, without informing the other guarantors of such fact, that owould release them also from any supposed obligation as joint, guarantors with their co-guarantor, Levin. Assuming that to be the fact, as must be done, as the record comes before this court, there could be no judgment against Levin, and, of course, there could be no judgment in an action of assumpsit, as this is, unless it could go against all of defendants.

The judgment of the Ajjpellate Court must be affirmed.

Judgment affirmed.