Foley v. Friestedt , 1913 Ill. App. LEXIS 1112 ( 1913 )

Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought a suit of the fourth class in the Municipal Court to recover from the defendant, here the plaintiff in error, for four months’ rent of a flat on a guaranty of the defendant. On a trial of the case by the court without a jury, the issues were found for the plaintiff and judgment entered against the defendant, to reverse which he sued out this writ of error.

The defendant’s wife sold and conveyed to the plaintiff a six-flat building. On the day of the said conveyance the defendant, acting for his wife, made and executed in his own name' as lessor a lease for one of the said flats and thereupon assigned the same to the plaintiff and also guaranteed the payment of the rent and the performance of the covenants by the lessee as provided in the said lease. Mrs. Friestedt was paid the consideration for the said transfers and the defendant received no part thereof.

The defendant insists that, no consideration being received by him for the the execution of the said guaranty and the only consideration for the conveyance of the said premises and the assignments of the said leases being the contract price for the purchase of said premises paid by the plaintiff to Mrs. Friestedt, and the said guaranty not being required by tbe said contract, it was without consideration and there could he no recovery thereon. The guaranty was made by the defendant simultaneous with the conveyance of the said premises and the assignments of certain leases pertaining thereto’ to the plaintiff, for which she paid to Mrs. Friestedt the consideration of $23,750.00. We think that the case is controlled by the rule announced in Haven v. Chicago Sash Door & Blind Co., 96 Ill. App. 92, wherein the Court say on page 101: “The rule in regard to guaranty is, that if the guaranty is simultaneous with the execution of the contract guaranteed, the consideration for the contract is a consideration for the guaranty.”

The defense that the guaranty was signed by mistake can not be considered in this action. City of Chicago v. Sexton, 115 Ill. 230, 243.

The judgment is affirmed.

Affirmed.