Ewen v. Wilbor , 1900 Ill. App. LEXIS 585 ( 1901 )

Mr. Justice Waterman

delivered the opinion of the court.

While it is true that the obligation of the guarantor can not be extended by implication or construction, and is limited strictly to the contract he has made, we do not understand that the rule is, as appellant declares, “ ivhat Shakespeare had in mind Avhen he wrote The Merchant of Venice.” The judgment of Portia did anything but “ make waste paper of Shylock’s bond.” On the contrary it converted it into an instrument by Avhich the hapless Jew was robbed of all he had; nor have Ave understood that Portia’s judgment was or is law in this or any other country.

The action in the present case is upon the guaranty, and the production of the note Avith the signature of appellant upon its back made a prima facie case against him. Legal proceedings are not necessary to fix the liability of a guarantor, nor is it necessary to prove demand upon the maker, or notice to the guarantor of non-payment, or to use diligence against the maker. Heaton v. Hulbert, 3 Scammon, 489; Parkhurst v. Vail, Adm’r, 73 Ill. 343; Stowell v. Raymond, 83 Ill. 120; Everhardt v. Page, 89 Ill. 550-554; Wallace v. Goold, 91 Ill. 15-20.

The burden of proof thus being thrown upon appellant, he introduced the contract of November 13, 1892, and under it insists that an actual, by Avhich we understand is meant a personal demand upon Warren Ewen, Jr., the maker of the note, was necessary as condition precedent to a right of action against John M. Ewen, the guarantor. The notary’s certificate was evidence that the demand described therein was made by him. (Montelius v. Charles, 76 Ill. 303.) The note, it appears, had been placed in the hands of a bank for collection. This not only authorized, but perhaps required the bank to make demand of payment. The fact that the notary in his certificate states that he made the demand at the request of the bank is immaterial. It doubtless was true, as a matter of fact, the bank, in endeavoring to collect the note, was acting as agent of the owner thereof, and the notary was a servant of the bank. Appellee guaranteed the note by writing his name across the back, and when presented for payment it bore the blank indorsement of the payee. It is said in Story on Bills of Exchange (Sec. 360):

“The holder himself, or his authorized agent, is the proper person to make the presentment for payment; and any person who is in possession of the bill under a blank indorsement, or with an indorsement to himself, will be deemed a holder for this purpose, although he may, in fact, be only the agent of the real owner; for the agent, under such circumstances, is, between himself and the acceptor, at liberty to treat the possession of the bill as being in him, under a legal litle, as trustee of the owner, and therefore he is entitled to receive payment.”

In section 234 of Story on Promissory Motes the author says:

“From what has been already said, it may be inferred— and, indeed, it is a clearly established doctrine — that where a promissory note is made payable at a particular place, as, for example, at a bank or banker’s, in every such case it will be sufficient for the holder to present the same for payment at the specified place; and he is under no obligation whatever, in case of its dishonor at that place, to present it for payment elsewhere, or personally to the maker. The reason is, that by making it payable at that particular place the maker impliedly dispenses with the necessity of making any demand upon him, either personally or elsewhere. And this doctrine applies as well to the case of the indorsers as of the maker of such a promissory note, for the indorsers, equally with the maker in such a case, impliedly agree that presentment at the place shall be sufficient to bind all the parties.”

And in section 213 of the same work the author further says:

“ If the note is payable at a bank or banker’s, or at any other specified place, .to the holder, whether the bank or banker, or other person, has lodged it there, or has possession of it there, at the time of its maturity, it will be the duty of the maker to make payment thereof at that very place, and no special demand need be made upon the maker.”

Uor was any demand upon Warren Ewen, Jr., other than that made by the notary, necessary in order to fix the liability of the guarantor. The note in this case, by its terms, being payable on demand after six months after date, and the agreement contemporaneously entered into, even though apart of the contract, can not require a demand other and different than in accordance with the terms of the note itself. The note constitutes the evidence of the debt, and the return of the money alleged in the contract to have been received as a special deposit was not recoverable except upon the note itself, for the evidence of the indebtedness, by the terms of the contract, was expressed in the note and merged therein, so that the latter constituted the evidence authorizing a recovery. The evidence shows the note was presented to the maker thereof by a bank with which it was deposited for collection, and was duly protested for nonpayment. The demand and protest were after the note was due in accordance with its terms, and it can not be that the guarantor is entitled to any other or different demand and protest further than was made on the maker.

Appellant insists that the negotiation of the note by plaintiff was a wrongful diversion of it from the purpose for which it was given, and released the defendant from his liability as a guarantor thereon.

One great difficulty in regard to this contention is that there is no evidence that the note upon the guaranty of which this action is brought was ever negotiated by the plaintiff or wrongfully diverted from the purpose for which it was given. The previous note may have been negotiated by the plaintiff, and appellant may have been released from his liability thereon. As to this we express no opinion. Whether released from that note or not, appellant voluntarily guaranteed the payment of the present note, it being made payable six months subsequent to the time upon which payment of the first note was required upon demand.

The evidence so clearly showed that the special deposit, acknowledged in the contract on November 15, 1892, was made, that we do not feel called upon to discuss whether appellant is in a position as to the second note to dispute the truthfulness of the acknowledgment of the receipt of the special deposit of $1,250 in the contract of November 15, 1892, under which the first note was given. It appears that prior to the making of the contract, November 15, 1892, between Warren Ewen, Jr., and appellee, two other contracts had been made, and that on August 30, 1893, an agreement was entered into between them, mentioning the two agreements last spoken of, and also an agreement dated February 23, 1893, and that as the conclusion of the agreement of August 30th, the following release was therein:

“Second: It is also understood and mutually agreed that the party of the first part herein and hereby releases the party of the second part from all debt and financial obligation for material and supplies furnished the offices and business of the party of the second part in the cities of Boston, Mass., and New York, N, Y., up to and including date of August 31, 1893; it being the intention, and mutually understood, that the party of the first part herein and hereby waives and cancels all claims and accounts, open, or of whatever kind that may be outstanding in favor of said party of the first part against the party of the second part, up to and including August 31, 1893.”

To this agreement and release of August 30,1893, Warren Ewen, Jr., was party of the first part, and Albert G. Wilbor, Jr., was party of the second part. It is alleged by appellant that at this time Warren Ewen, Jr., was insolvent. As the release is to the plaintiff in this case and not from him it is difficult to understand in what way it affected the obligation of Warren Ewen, Jr., to pay the note under consideration or the guaranty of appellant.

Appellant having pleaded a set-off, urged upon the trial that plaintiff was indebted to Warren Ewen, Jr.,and that the latter had assigned his claim for such indebtedness to him, appellant, and end eavoredtointroduce a writing setting forth said assignment. The court refused to admit such writing, not, as appellant urges, “ because it was not made on the day it was dated,” but because by the testimony of the assignor it was made upon the date of the trial of the cause. Manifestly, appellant could not in this action at law have set off against the plaintiff claims which he had acquired, not only after suit was begun, and the issues made up, but when the trial was going on.

We see nothing in the phraseology of the note to take it out of the category of negotiable instruments, or to make its significance otherwise than clear.

While as before stated the contract of a surety is to be strictly construed, and will not be extended by implication, courts in endeavoring to ascertain the precise contract which a surety has made, may resort to the same aids and will invoke the canons of interpretation which apply to other contracts, and when the true intent and meaning of thecontract entered into by the surety is thus or otherwise ascertained, effect will be given to it. Indeed, in a proper case a bond given by a surety may be amended so as to give effect to and enforce his liability under the contract which a court of equity finds he actually made. Shreffler v. Nadelhoffer, 133 Ill. 536; Henkleman v. Peterson, 154 Ill. 419; Keith v. Henkleman, 173 Ill. 137.

Appellant urges that the jury rendered a verdict only for the principal of the note, not allowing interest. Appellant at the time made no objection to this feature of the verdict, nor did he ask to have the jury again retire that they might compute and add interest to the amount they had found. The omission by the jury and error of the court, if such there were in this regard, were favorable to appellant, and he can not now urge them as a ground for reversal.

We do not find any action of the court upon the trial in allowing or refusing the giving of evidence, or as to instructions, which we think warrants a reversal of the judgment.

It will therefore be affirmed.