Van Kleeck v. Channon , 175 Ill. App. 626 ( 1912 )

Mr. Justice Barnes

delivered the opinion of the court.

The main question in this case is whether appellant could be held as guarantor on certain promissory notes of which a corporate company was maker and appellee payee, and across the back of which appellant had written his name prior to their delivery to appellee. Under such circumstances the presumption of law would be that he assumed the liability of guarantor, but such presumption may be rebutted. De Clerque v. Campbell, 231 Ill. 442, and cases cited.

Appellant sought to overcome it by proof of what was said in a conversation between appellant and appellee’s husband at the time of making such endorsement. Had there been proof that the latter was her agent in the transaction, unquestionably such testimony would have been admissible; but there was no competent proof of such an agency, and the testimony was, therefore, properly excluded.

The record discloses that appellee’s husband was the secretary, manager and financial agent of said company; that it needed money; that he suggested to and requested of his wife that she make a loan to it; that he obtained her checks payable to its order, passed them to the company’s credit, executed with unquestionable authority the company’s notes therefor, secured appellant’s personal endorsement thereon, and then delivered the notes so endorsed to his wife. There was no specific proof that in these transactions he acted as her agent. That he was such could not be inferred from the mere fact that he was her husband (Camp v. Shaw, 61 Ill. App. 66; Wallace v. Monroe, 22 Ill. App. 602), especially when his relations to the company and appellant as one of its officers supported a stronger inference that he was acting as the company’s agent. The contractual relation between appellant and appellee, as determined from these circumstances, did not render such conversation a part of the res gestae as claimed by the appellant, it being with one not shown to be her authorized representative, and, therefore, not part of a transaction with her. It not being binding-up on her, she had the right when the notes were delivered to rely upon the presumption that appellant’s contract was one of guaranty. To rebut such legal presumption, the proof must be clear and satisfactory as to a different intention. Stowell v. Raymond, 83 Ill. 120. A declaration not made to her or her agent, and not authorized by her, could not establish it. The testimony adduced did not tend to show that her husband was acting- as her agent, but tended to support a contrary conclusion. The introduction of the notes made a prima facie case in appellee’s favor, and it not having been overcome the court properly directed a verdict in her favor. Clarke v. Newton, 235 Ill. 530.

We need not consider the other questions urged further than to say that inasmuch as a guarantor’s liability is the same as that of an original maker, it was not necessary to demand payment of appellant before instituting- the suit. Hunt v. Divine, 37 Ill. 137; Allen v. Rightmere, 20 Johns. R. 364. If the debt is not paid at maturity he may be sued at once. Dillman v. Nadelhoffer, 160 Ill. 121. Nor is a new consideration necessary to support such a contract of guaranty. Carroll v. Weld, 13 Ill. 683; Dillman v. Nadelhoffer, supra.

The judgment is affirmed.

Affirmed.