Varley v. Title Guarantee & Trust Co. , 1895 Ill. App. LEXIS 339 ( 1895 )

Hr. Presiding Justice Gary

delivered the opinion of the Court.

The judgment appealed from is against the appellant as guarantor of a promissory note payable to a banking firm, upon the back of which he wrote his name at the time when it was made.

To do full justice to Ms position on this appeal we copy from his abstract all the testimony (being his own only) on the subject of his having assumed the burden as a guarantor.

“ The writing above my signature, on the back of this note in question, was not there when I indorsed the note. At the time I indorsed the note Hr. Martin conducted the business on the part of the- bank. Mr. Wakely introduced me to Mr. Martin. Mr. Martin said, c How long do you want to indorse this note for, Mr. Varley?’ I said, ‘Sixty days.’ Mr. Martin then says to me, ‘We only hold you responsible for sixty days.’ He (referring to Martin) then said, “ If we can not get the money out of Mr. Wakely we will then proceed against you.’ That was the understanding. Then I up and indorsed the note. He (Martin) said, £ indorsement; ’ he did not say guarantee. He said simply, ‘ indorse the note.’ He gave me to distinctly understand I was only held for sixty days. He (Martin) said if he could not get the money out of Walcely he would then proceed against me.” Martin was one of the firm which was payee of the note.

If the appellant incurred any liability to the payee, it must have been as guarantor. In the character of indorser he could only have been subsequent to the payee, and therefore in no way liable to it. Bogue v. Melick, 25 Ill. 91; Blatchford v. Milliken, 35 Ill. 434.

It is wholly conjectural what the appellant and Martin meant if they had a conversation in the very words as quoted, and therefore, as the proof does not show any contract by parol, the contract implied by law is to govern.

The case much resembles Klein v. Currier, 14 Ill. 237, and the judgment is affirmed.

Shepard, J., takes no part in this case.