First National Bank of Davenport v. E. Rothschild & Bros.

Mr. Presiding Justice Waterman

delivered the opinion of the court.

The following instruction, at defendant’s request, was given to the jury:

“If the jurv believe from the evidence that the plaintiff did not, on its part, agree to at all times give Isaac Rothschild the credit in question of from $10,000 to $15,000, so long as nothing had happened to him or his business, then the jury are instructed to find for the defendant; and the jury are further instructed that the burden of proving that the plaintiff did so agree is upon the plaintiff.”

This instruction was wrong; and if for no other reason the judgment must be reversed on account of it. However conditional the guaranty of appellee may have been, it was not conditioned that the bank should agree to at all ztimes give Isaac Rothschild a credit of from ten to fifteen thousand dollars, so long as nothing happened to him or his business. The question in this regard to be submitted to the jury was, clid the bank act upon the offered guaranty of appellee and did appellee have reasonable notice that it had so done.

It does not appear that any formal, specific notice was given to appellee that the bank accepted the guaranty and would act thereon, but it does sufficiently appear from the correspondence that appellee knew that the bank was acting on the guaranty.

The principal contention by appellee in support of the judgment it has obtained is, that the condition of the guaranty was that appellant should extend to Isaac Bothschild a continuous credit of from ten to fifteen thousand dollars.

Each party insists that it was entitled at the close of the evidence to a peremptory instruction to render a verdict for it. When the facts bearing upon a controversjr are not in dispute, there is presented only a' question of law for the court and consequently no question for a jury. So, too, when the undisputed facts are such that from them the law draws a certain inference, there remains no question to be submitted to a jury. Nevertheless, it not infrequently happens that when the plaintiff’s case, as well as the defendant’s, is predicated upon written documents, there exists a question of fact to be found by a jury. When written documents are submitted, the tenor of which is not certain and which are susceptible of variant meanings, it is admissible to show by oral testimony the circumstances under which the writings were made, as well as the subsequent conduct of the parties thereunder, that the court, standing in the shoes of the parties, may view the subject-matter as did they in making the writings, and may also know the construction which the parties have put upon the writings by them made. The inference to be drawn from such situation and such conduct is ordinarily a question of fact to be determined by a jury. In the present case there was oral evidence tending to show, not only the circumstances under which the writings of the parties were made, but also the construction which they placed upon the instruments they had signed. The cause will therefore be remanded for a new trial. As to this, see Osgood v. Skinner, 186 Ill. 491; Beach on Contracts, Sections 719, 720, 721; Rice v. Illinois Central Railroad Company, 22 Ill. App. 643-649.

As appears from the evidence, appellee has no reason to complain of the settlement made with Hayum. The guaranty was not made upon consideration that one should be obtained from Hayum. He has paid more than one-half of the indebtedness of Isaac Bothschild and is a loser by more than $4,000, while the amount claimed from appellee is less than $2,000.

The judgment of the Circuit Court is reversed and the cause remanded.