Abbott v. Brown

Gary, J.

The appellant sued the appellee upon a guaranty, as follows :

“For value received I hereby guarantee the pajunent of the within note at maturity, or at any time thereafter, with interest at ten per cent, per annum until paid, and agree to pay all costs and expenses paid or incurred in collecting the same, including attorney’s fees.

“ J. B. Beown.”

And the note was :

“Chicago, III., July 1, 1876.

“ One day after date I promise to pay to the order of H. G. Abbott two thousand dollars, with interest at the rate of ten per cent, per annum, at First National Bank of Chicago, value received.

“Bjek B. Newell.”

That note was never collected, though before any suit was commenced on this guaranty the appellant had incurred expense in endeavoring, or watching an opportunity, to collect it.

July 3, 1882, appellant sued appellee upon this guaranty, prosecuted the case through the Circuit, this and the Supreme Courts, and at last got the principal and interest of the note itself, presumably with the taxable costs. His claim now is that the guaranty requires the appellee to pay, in this suit, the expenses both of the unsuccessful efforts to collect the note and the successful suit upon the guaranty. As to those first named expenses, if they were a proper charge against the appellee upon the guaranty, for which there is hardly a plausible pretext, they should have been included in the former suit. All the claim the appellant then had upon the guaranty constituted but one cause of action, and could not be split up. Clayes v. White, 83 Ill. 540; Nickerson v. Rockwell, 90 Ill. 460.

As to the expenses of prosecuting the former suit upon this guaranty, it is only by a forced and unnatural construction that they can be held to be within the guaranty. The antecedent of the word “ same ” in the guaranty is the phrase “the within note,” so that the guaranty has the same meaning as if those words were inserted in place of the word “ same,” making the reading, “ agree to pay all costs and expenses paid or incurred in collecting the within note.” The guaranty and the note are separate contracts, and though the payment of either would, as to the holder, extinguish his claim upon the other, this consequence has no effect upon their separate identity. “A surety can only be charged where the case is brought within the very terms of his contract.” National Bank v. Diefendorf, 90 Ill. 396; Brandt on Sur. & Guar., Sec. 79 et seq.

“ The liability of the guarantor depends entirely on the terms of the contract of guaranty.” Croskey v. Skinner, 44 Ill. 321. And a written guaranty is governed by the general rule that a contract in writing can not be varied by parol evidence. Abrams v. Pomeroy, 13 Ill. 133.

• The cases cited from the reports of other States, holding that a guarantor of a note is a joint maker, whatever may he their application to this case, are not in accordance with the settled rule here. Clark v. Morgan, 13 Ill. App. 597.

It is true that the ultimate effect of the guaranty was an undertaking that the debt should be paid, but the form of that undertaking is, that the maker of the note would pay it. The contract is elliptical. The words “ by the maker thereof ” are implied, as if written in after the word “note,” and the expenses assumed are such as might be incurred in compelling him to perform his contract contained in the note itself.

The Circuit Court was right in so holding, and the judgment is affirmed.

Judgment affirmed.