D. M. Osborne & Co. v. McCarthy , 1901 Ill. App. LEXIS 374 ( 1901 )

Mr. Presiding Justice Harker

delivered the opinion of the court.

One Mike McCarthy entered into a written contract with appellant, a corporation, for the purchase of farm machinery and other like merchandise to be sold at Dalton City, Illinois, during the season of 1898. The contract provided for the sale of the merchandise at prices named in annexed lists and payment by McCarthy with express charged or exchange. Appellee and Nellie McCarthy executed on the back of the contract the following guaranty :

“ In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, I hereby guarantee the fulfillment of the within contract on the part of M. McCarthy.

(Signed) C. McCarthy,

Nellie McCarthy.”

McCarthy, in the course of his dealings with appellant, became indebted to it in the sum of $329.06 and failed to pay. This suit was brought upon the guaranty. Appellee D. McCarthy only, was served, the summons being returned nonest inventus as to Nellie McCarthy. Appellee filed plea of the general issue to the amended declaration, and upon the issue raised thereby, a trial was had by the court without a jury, resulting in a finding and judgment against appellant. We think the judgment is right.

It is contended that the amended declaration does not state a cause of action against appellee. Having pleaded to the declaration and gone "to trial on the merits, appellee is in no position to urge the objections he does to it in this court.

He further contends that the contract sued upon does not constitute a cause of action. We can not take that view. It is a plain guaranty for the faithful performance of a contract of purchase on the part of appellee’s principal.

It is insisted that appellee can be held liable as guarantor only for such merchandise sold to Mike McCarthy by appellant as was included within the lists attached to the contract, and had the prices annexed. The contract provided that appellant should sell and Mike McCarthy should buy and pay for the merchandise listed and at the prices annexed.

In support of the contention appellee calls to his aid the well settled rule of law that a contract of guaranty must be strictly construed. Ryan v. Trustees, etc., 14 Ill. 20; Stull et al. v. Hance, 62 Ill. 52; Shreffler v. Nadelhoffer, 133 Ill. 536; Tolman Co. v. Rice, 164 Ill. 255. An inspection of the contract with the lists attached shows that prices were annexed to but few of the articles of merchandise listed.

They were:

“10-foot self dump rakes, 24 teeth.......$18 00

Manila twine, per Id................... 06£

Columbia Disc Harrow, 14 discs, 16 in... 24 00

Rival Disc Harrow, 14 discs, 16 in....... 20 00

Columbia Peg Tooth Harrow 105 teeth.. 13 50 Orbit Oil in barrels, per gallon.......... 18”

It nowhere appears from proof in the record that any part of the $329.06 which Mike McCarthy owed appellant was for any merchandise above enumerated, and the court was right in finding for appellee. Judgment affirmed.