{ "id": 5389042, "name": "CITY NATIONAL BANK OF HOOPESTON, Plaintiff-Appellee and Cross-Appellant, v. DEAN RUSSELL, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "City National Bank v. Russell", "decision_date": "1993-06-29", "docket_number": "No. 4-92-0910", "first_page": "302", "last_page": "311", "citations": [ { "type": "official", "cite": "246 Ill. App. 3d 302" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "519 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "119 Ill. 2d 405", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193371 ], "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0405-01" ] }, { "cite": "567 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 994", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548234 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0994-01" ] }, { "cite": "596 N.E.2d 1269", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1274" } ], "opinion_index": 0 }, { "cite": "231 Ill. 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App. 3d", "case_ids": [ 3206916 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1025" }, { "page": "1024" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/1022-01" ] }, { "cite": "604 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "543" } ], "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5162310 ], "year": 1980, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0614-01" ] }, { "cite": "436 N.E.2d 251", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 878", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3029859 ], "pin_cites": [ { "page": "884" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0878-01" ] }, { "cite": "453 N.E.2d 932", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "936" } ], "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 600", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481920 ], "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0600-01" ] }, { "cite": "589 N.E.2d 983", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "986" }, { "page": "986" } ], "opinion_index": 0 }, { "cite": "226 Ill. App. 3d 783", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238877 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "787" }, { "page": "787" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0783-01" ] }, { "cite": "402 N.E.2d 599", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "601" }, { "page": "601" } ], "opinion_index": 0 }, { "cite": "79 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070566 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "286" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0282-01" ] }, { "cite": "552 N.E.2d 775", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "135 Ill. 2d 140", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256801 ], "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0140-01" ] }, { "cite": "456 N.E.2d 150", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3628368 ], "pin_cites": [ { "page": "248-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0238-01" ] }, { "cite": "527 N.E.2d 637", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "642" }, { "page": "642" } ], "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5082151 ], "weight": 2, "pin_cites": [ { "page": "1075" }, { "page": "1075" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/1066-01" ] }, { "cite": "366 N.E.2d 937", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "940" }, { "page": "941" } ], "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 738", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3385001 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "740" }, { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0738-01" ] }, { "cite": "468 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "187" }, { "page": "187" }, { "page": "187", "parenthetical": "no indication Bank in accepting guaranty agreed to forbear collection longer than term of note, which it was already obligated to do" } ], "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 203", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562991 ], "weight": 3, "pin_cites": [ { "page": "207" }, { "page": "207" }, { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0203-01" ] }, { "cite": "606 N.E.2d 798", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5149245 ], "pin_cites": [ { "page": "790-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0786-01" ] }, { "cite": "595 N.E.2d 201", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "203" } ], "opinion_index": 0 }, { "cite": "229 Ill. App. 3d 952", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5217375 ], "year": 1992, "pin_cites": [ { "page": "955" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0952-01" ] }, { "cite": "583 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595999 ], "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0404-01" ] } ], "analysis": { "cardinality": 998, "char_count": 22145, "ocr_confidence": 0.768, "pagerank": { "raw": 9.072730475215861e-08, "percentile": 0.5052593799870185 }, "sha256": "4fb6d6b00d71288da8b3e3bc5c147ba4eb30684f5730d9e4e4aa22cf9c9e99fd", "simhash": "1:ca5e3c467ec78685", "word_count": 3539 }, "last_updated": "2023-07-14T16:15:27.018701+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CITY NATIONAL BANK OF HOOPESTON, Plaintiff-Appellee and Cross-Appellant, v. DEAN RUSSELL, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nDefendant Dean Russell appeals the trial court\u2019s summary judgment in favor of plaintiff City National Bank of Hoopeston. Defendant contends the trial court erred in finding consideration for his' guaranty and erred in finding no genuine issue of material fact on the affirmative defense of fraud. Plaintiff cross-appeals the trial court\u2019s denial of attorney fees. We reverse the order of summary judgment and remand.\nG. Neil Sheppard began farming in 1976. When he started his farming business, he received financing from plaintiff bank. Sometime in the late 1970\u2019s defendant signed a guaranty for $60,000 to cover plaintiff\u2019s loan to Sheppard. At that time Sheppard was defendant\u2019s son-in-law. In fall 1986 plaintiff received a bank examiner\u2019s report which \u201ccriticized\u201d the Sheppard loan. William Penicook, agricultural loan officer at plaintiff bank, stated that because the examiners had \u201cclassified\u201d the Sheppard loan, he decided \u201cto help the classification that we would, you know, ask for an increase in the personal guarantee from [defendant].\u201d Sheppard\u2019s loan was secured with equipment, crops, and the personal guaranty from defendant. Sheppard\u2019s operating loans had not been paid in the past and his machinery had declined in value; therefore, plaintiff wanted additional collateral to cover Sheppard\u2019s loan.\nOn February 27, 1987, Penicook met with Sheppard to discuss concerns about the loan and collateral, and to review Sheppard\u2019s loan needs for 1987. Penicook drafted three loans for Sheppard dated February 27: (1) a $30,000 operating loan (a line of credit) for 1987, (2) a $107,670 renewal of an existing loan, and (3) a $1,790 loan for unpaid 1986 operating expenses. The three loans totalled $139,460. Penicook indicated that at their February 27 meeting he told Sheppard the bank would not make the loan if defendant would not increase the guaranty. Sheppard recalled that Penicook told him \u201cin a professional way that [he] was borderline\u201d and that Penicook would have to get \u201can okay from [defendant].\u201d This was the first time Sheppard realized that defendant was involved with his financing. On February 27, prior to anyone contacting defendant, the loans were signed making all new funds immediately available to Sheppard. The notes had a term of one year. After his meeting with Sheppard on February 27, Penicook called defendant and told defendant they needed to talk about Sheppard; Penicook did not mention the guaranty in that call.\nAt his deposition defendant stated he met with Penicook at the bank on April 1, and Penicook told him the bank needed to increase the guaranty on Sheppard\u2019s loan to $90,000. Defendant recalled that he asked Penicook how much Sheppard owed and that Penicook answered \u201c \u2018Around seventy thousand dollars ($70,000.00), he needs twenty for operation for the following year.\u2019 \u201d Defendant \u201cbelieves\u201d he then asked Penicook how much Sheppard\u2019s machinery was listed at, and Penicook told defendant \u201csixty-three thousand dollars ($63,000.00) on machinery and [Sheppard] had twenty-five to maybe thirty coming in for crops that year.\u201d Although defendant did not look at the documents referred to by Penicook, he was familiar with Sheppard\u2019s farming operation and estimated the machinery might only be worth $40,000. Defendant then figured out his possible liability in his mind by adding the $40,000 collateral from the machinery and the $30,000 estimated income, and told Penicook, \u201c \u2018Well, if worse [sic] comes to worse [sic]\u2019 assuming [Sheppard\u2019s] equipment is valued at that, and the money is coming in[,] the worse [sic] I could get hurt for would be about twenty thousand dollars ($20,000.00)[,] and Mr. Penicook agreed with me.\u201d Defendant then asked Penicook to keep him informed about Sheppard\u2019s finances, read the $90,000 guaranty \u201csomewhat,\u201d and signed the guaranty. Defendant claims he understood that \u201cSheppard would not owe [plaintiff] more than ninety thousand dollars ($90,000),\u201d he could be held liable up to $90,000 if Sheppard failed to make payments, and if he did not sign the guaranty Sheppard \u201cwould not be farming.\u201d Defendant did not look at Sheppard\u2019s financial records and never discussed the guaranty with Sheppard.\nPenicook stated at his deposition that when he met with defendant on April 1 he told defendant the bank \u201cneeded\u201d to increase the guaranty and asked defendant to increase the limit on the guaranty from $60,000 to $90,000 because \u201cwe didn\u2019t want to go any farther [sic] without additional collateral.\u201d If they discussed the amount of money Sheppard owed, Penicook stated he would have told defendant exactly what Sheppard owed on the three notes signed February 27. There was not much discussion about the necessity for increasing the guaranty because defendant \u201cwas willing to sign.\u201d Penicook did not recall any discussion about defendant\u2019s maximum risk exposure. Defendant did not ask plaintiff \u201cnot to call [Sheppard\u2019s] loans,\u201d \u201cnot to sue [Sheppard],\u201d or \u201cnot to foreclose\u201d on any of the bank\u2019s collateral. Defendant told Penicook that he wanted to be informed annually about how Sheppard was doing, and signed the guaranty. The guaranty provided that defendant would guarantee:\n\u201cthe full and prompt payment, when due, whether by acceleration or otherwise, together with interest and all costs, expenses and attorney\u2019s fees, of any and all notes, bills, drafts, commercial paper and other obligations or liabilities of the Debtor of every kind (herein collectively called \u2018Liabilities\u2019), whether signed, accepted, drawn, endorsed or otherwise incurred by the Debtor, that are or shall be owned, held or acquired, whether through discount, overdraft, purchase, direct loan, or as collateral or otherwise by Bank, either for the Debtor or for any holder thereof, provided that the Liability thereon and hereon of the undersigned shall not exceed the principal sum of NINETY THOUSAND AND NO/lOO-DoIlars ($90,000.00) at any one time outstanding.\nThis Guaranty shall be and remain a continuing and unconditional guarantee for the payment of any and all Liabilities of the Debtor not exceeding in the aggregate the said principal sum at any one time outstanding and shall continue and be in force until all Liabilities of the Debtor guaranteed hereby shall be fully paid.\u201d\nThe next time defendant met with anyone at the bank about Sheppard\u2019s loans was one year later in April 1988. Defendant recalled asking Penicook how Sheppard was doing and Penicook responded \u201c \u2018Oh, he is doing okay\u2019 that was about the extent of their conversation. Approximately one year later, in April 1989, defendant again discussed Sheppard\u2019s loan with Penicook. Defendant asked how Sheppard was doing, Penicook told defendant \u201c \u2018He is on our watch list,\u2019 \u201d and that was the end of their conversation.\nIn late spring or early summer of 1989 Sheppard and defendant\u2019s daughter separated and, in the fall, defendant told Penicook he \u201cwould have to withdraw [his] support of [Sheppard\u2019s] loans.\u201d Defendant recalled that Penicook told him to put \u201csomething in writing.\u201d Defendant indicated that he asked Penicook how much Penicook thought defendant would be responsible for on the loans and after checking some documents Penicook told him \u201c$20,000.\u201d By late November or early December Sheppard and defendant\u2019s daughter had divorced, and defendant called the bank and told Penicook he was getting ready to send the letter. On or about December 18 defendant sent a letter to Penicook and a copy to Sheppard; apparently, the letter mentioned defendant\u2019s desire to withdraw his guaranty. A copy of the letter was not included in the record on appeal.\nThe next contact defendant had with plaintiff bank was at the end of December when Penicook called defendant and asked him to advance $4,000 for Sheppard\u2019s fertilizer bill. Defendant asked if it looked like he was \u201cstill in the twenty thousand dollar area of this commitment\u201d he would owe the bank, Penicook confirmed that amount, and defendant said \u201c \u2018well, if I can stand twenty thousand dollars I can surely stand twenty-four\u2019 \u201d and he approved the advance \u25a0for the fertilizer bill. In early January Penicook told defendant the fertilizer bill came to $11,000 and that Penicook had advanced the money to Sheppard on defendant\u2019s behalf. Later in January defendant learned that Sheppard planned to sell his farm equipment and quit farming. Defendant heard the sale brought $43,000, less auctioneer fees, which was about what he had estimated as the value of the equipment.\nDefendant then met with Penicook on April 1, 1990, and Penicook informed defendant the debt was approximately $113,000. Defendant claims he responded by saying \u201c \u2018This is way over the limit\u2019 \u201d and Penicook said \u201c \u2018It has always been over the limit. That doesn\u2019t mean anything.\u2019 \u201d At his deposition, defendant stated this was the first time the bank told him that Sheppard owed more than $90,000. Defendant subsequently received a letter from plaintiff bank describing Sheppard\u2019s defaulted loans and requesting payment from defendant as required by the guaranty. About a week later defendant met with Penicook, bank president Byron Hedgecock, and Larry Oyler, the loan officer who originally handled Sheppard\u2019s loans. They discussed whether the $43,000 from the machinery sale should be subtracted from the $90,000 guaranty, and Oyler explained \u201cthat is not the way it is done.\u201d Sheppard subsequently filed bankruptcy.\nIn October 1990 plaintiff filed a complaint against defendant for the $90,000 guaranty, plus costs and attorney fees. Defendant filed affirmative defenses and a counterclaim; both parties filed motions for summary judgment. After a hearing the trial court granted plaintiff\u2019s motion for summary judgment, entered judgment against defendant for $90,000 plus costs, and denied plaintiff\u2019s petition for attorney fees. Defendant filed a timely notice of appeal and plaintiff a timely cross-appeal.\nIn allowing plaintiff\u2019s motion for summary judgment, the trial court ruled there were no genuine issues of material fact. A motion for summary judgment should be granted as a matter of law when the pleadings, depositions, and affidavits reveal no genuine issue as to any material fact. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411, 583 N.E.2d 538, 541; see Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 1005(c).) In reviewing the trial court\u2019s granting of plaintiff\u2019s motion for summary judgment, this court\u2019s role is to consider anew the facts and law related to the case to determine whether the trial court was correct. Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 955, 595 N.E.2d 201, 203; Swisher v. Janes (1992), 239 Ill. App. 3d 786, 790-91, 606 N.E.2d 798, 802.\nThe first issue is whether the trial court erred in finding there was consideration for the guaranty, as a matter of law. A guaranty which is executed contemporaneously with the debt it guarantees is supported by sufficient consideration. (American National Bank v. Warner (1984), 127 Ill. App. 3d 203, 207, 468 N.E.2d 184, 187.) However, where the guaranty is executed after the guaranteed debt is incurred, new consideration is necessary to support the guaranty. (First National Bank v. Chapman (1977), 51 Ill. App. 3d 738, 740, 366 N.E.2d 937, 940; American National Bank, 127 Ill. App. 3d at 207, 468 N.E.2d at 187; 1A A. Corbin, Corbin on Contracts \u00a7213, at 285-87 (1963).) Forbearance from exercising a right to take legal action against a third party constitutes adequate consideration for the guaranty of a debt obligation of the third party. (Town & Country Bank v. E. & D. Bancshares, Inc. (1988), 172 Ill. App. 3d 1066, 1075, 527 N.E.2d 637, 642.) To constitute consideration for a guaranty, an agreement to forbear need not be in express terms or for an exact period of time. (Town & Country, 172 Ill. App. 3d at 1075, 527 N.E.2d at 642; Corn Belt Bank v. Lincoln Savings & Loan Association (1983), 119 Ill. App. 3d 238, 248-49, 456 N.E.2d 150, 158.) However, the mere fact that the creditor eventually did forbear is not consideration unless the forbearance was pursuant to an agreement between the parties for such forbearance. First National Bank, 51 Ill. App. 3d at 742, 366 N.E.2d at 941.\nHere, the trial court concluded there was consideration; there was an \u201cindicia of forbearance\u201d evidenced by defendant\u2019s statement that he understood Sheppard \u201cwould not be farming\u201d if defendant did not sign the guaranty. Plaintiff contends that is enough to show consideration in light of Penicook\u2019s statement that he told defendant \u201cthat we didn\u2019t want to go any farther [sic] without additional collateral,\u201d and the fact that Sheppard continued to farm in 1987 and 1988 without interference by the bank. Plaintiff views this evidence as particularly convincing given that defendant was an experienced farmer with knowledge of farm financing. To determine whether there was consideration, it must be determined what plaintiff could have done to stop the farm operation. The notes were written for a period of one year; at the end of the year, nothing contained in the notes would have prevented plaintiff from declining to renew them. Plaintiff does not argue that it would have been required to renew the notes, relying instead on its vague argument \u201cthere was definitely a suggestion or an inference that Mr. Sheppard would not be allowed to continue his farming operation if defendant did not sign the $90,000.00 \u2018Unconditional Guarantee.\u2019 \u201d\nAn insecurity clause in the \u201cDEFAULT\u201d paragraph on the back of the February 27, 1987, notes issued to Sheppard may have allowed the bank to accelerate the notes if the guaranty had not been signed. (See Ill. Rev. Stat. 1991, ch. 26, par. 1 \u2014 208.) That paragraph lists several events which constitute default, including if \u201canything else happens which causes you [the bank] to believe that you will have difficulty collecting the amount I [Sheppard] owe you.\u201d Perhaps the bank in good faith could have accelerated the notes by deeming itself insecure, if defendant had not executed the guaranties the bank (and apparently Sheppard) expected defendant to sign. See Watseka First National Bank v. Ruda (1990), 135 Ill. 2d 140, 157, 552 N.E.2d 775, 782 (\u201ca creditor acts in good faith when exercising an acceleration clause so long as it acts honestly, irrespective of whether the \u2018reasonable creditor\u2019 would have accelerated under the same circumstances\u201d).\nAs of April 1, 1987, when defendant signed the guaranty, Sheppard had access to all funds from the three loans and none of the loans had yet reached maturity. Penicook admitted that as of February 27, 1987, the loans were fully available to Sheppard, and stated that he decided to increase the personal guaranty from defendant in order to \u201chelp with the classification\u201d of Sheppard\u2019s loans that the bank had recently received from the bank examiners. Defendant argues the increased guaranty was simply to \u201cshore up\u201d the loans already made to Sheppard. While the bank sought the guaranty to improve its position, there was no evidence presented that the bank could have taken action against Sheppard if the guaranty had not been signed. An agreement to perform one\u2019s preexisting contractual obligations does not constitute legally sufficient consideration for a guaranty agreement. American National Bank, 127 Ill. App. 3d at 207, 468 N.E.2d at 187 (no indication Bank in accepting guaranty agreed to forbear collection longer than term of note, which it was already obligated to do).\nWe find a genuine issue of fact exists as to whether the $90,000 guaranty was supported by sufficient consideration. There was some evidence the Bank could have done nothing if the guaranty had not been signed. The trial court should not have granted summary judgment.\nIt is also an issue whether a material issue of fact exists regarding defendant\u2019s affirmative defense. Defendant contends plaintiff made fraudulent misrepresentations to him which he relied upon in signing the $90,000 guaranty. Defendant stated in his deposition that Penicook told him Sheppard owed $70,000 and needed $20,000 for operating; Penicook stated in his deposition that if he told defendant an amount, it would have been the amount of the three loans. Defendant stated that Penicook agreed with his statement that, given the collateral, the worst-case scenario would be defendant owing the bank $20,000; Penicook does not recall discussing the collateral or potential losses with defendant. To prove his claim of fraud, defendant must show (1) plaintiff made a false statement of material fact which plaintiff knew or believed to be false, (2) plaintiff intended to induce defendant to sign the guaranty, (3) defendant signed the guaranty in reliance on the truth of plaintiff\u2019s statement, and (4) damage to defendant resulted from justifiable reliance on plaintiff\u2019s statement. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599, 601; Mt. Zion State Bank & Trust v. Weaver (1992), 226 Ill. App. 3d 783, 787, 589 N.E.2d 983, 986; see W. Keeton, Prosser & Keeton on Torts \u00a7105, at 728 (5th ed. 1984); Restatement (Second) of Torts \u00a7537, at 80 (1977).\nPlaintiff contends there was no fraud because there was no justifiable reliance. Plaintiff argues defendant is not entitled to claim fraud where he had equal access to all relevant information. (See Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 606, 453 N.E.2d 932, 936.) Plaintiff contends defendant could not justifiably rely on Penicook\u2019s statement, given that defendant was an experienced farmer familiar with farm loan operations, especially where he had sufficient opportunity to discuss the loans with Sheppard, who lived nearby and was his son-in-law. (See Luciani v. Bestor (1982), 106 Ill. App. 3d 878, 884, 436 N.E.2d 251, 256.) Even if defendant relied on Penicook\u2019s alleged statement, plaintiff argues such reliance would not be justifiable since defendant could have determined the amount of Sheppard\u2019s outstanding loans to the bank by exercising \u201cordinary prudence.\u201d See Soules, 79 Ill. 2d at 286, 402 N.E.2d at 601.\nDefendant contends his reliance on the statements by Penicook was clearly justified. Even if plaintiff had no duty to provide information to defendant, it did have a duty not to provide false information. A bank has a duty of good faith in dealing with a guarantor (see Magna Bank v. Jameson (1992), 237 Ill. App. 3d 614, 617, 604 N.E.2d 541, 543; Dee v. Bank of Oakbrook Terrace (1980), 84 Ill. App. 3d 1022, 1025, 406 N.E.2d 195, 198; McHenry State Bank v. Y & A Trucking, Inc. (1983), 117 Ill. App. 3d 629, 632-33, 454 N.E.2d 345, 348); therefore, the guarantor is entitled to rely on the representations of fact made by the bank (Mt. Zion, 226 Ill. App. 3d at 787, 589 N.E.2d at 986; Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416, 426, 487 N.E.2d 758, 765), especially the representations on how much money the bank has loaned to the person whose debts will be guaranteed. Defendant could have been more cautious and double-checked loan balances with Sheppard, but he must be able to rely on representations of the creditor bank which had a duty to provide him with accurate information regarding Sheppard\u2019s loans. A guarantor is a favorite of the law. Farmers State Bank v. Doering (1980), 80 Ill. App. 3d 959, 961-62, 400 N.E.2d 705, 707; Hensler v. Busey Bank (1992), 231 Ill. App. 3d 920, 926, 596 N.E.2d 1269, 1274.\nIf the trier of fact accepts defendant\u2019s version of the facts, it could find that plaintiff fraudulently induced defendant to sign the guaranty and defendant justifiably relied on Penicook\u2019s representations. Accordingly, summary judgment was improper because there are genuine issues of fact regarding the affirmative defense of fraudulent misrepresentation.\nThe last issue raised on appeal is whether the trial court erred in denying plaintiff\u2019s request for attorney fees. After a hearing the trial court denied plaintiff\u2019s request for attorney fees, strictly construing the ambiguous language of the guaranty against plaintiff. The guaranty provides \u201cthe Liability thereon and hereon of the undersigned shall not exceed the principal sum of\u201d $90,000. Payment of notes, interest, attorney fees, and other obligations are \u201ccollectively called \u2018Liabilities\u2019 \u201d by the guaranty. By its terms, the guaranty is an \u201cunconditional guarantee for the payment of any and all Liabilities of the Debtor not exceeding in the aggregate the said principal sum.\u201d This language limits defendant\u2019s total liability on the guaranty (including costs, interest, attorney fees, and principal due) to a total of $90,000. Plaintiff\u2019s reliance on Boatmen\u2019s Bank v. Dowell (1991), 208 Ill. App. 3d 994, 567 N.E.2d 739, is misplaced because the guaranty in that case was not limited as to amount, and expressly included attorney fees as a collectible amount. Defendant correctly points out that guaranty agreements are strictly construed in favor of the guarantor, especially where the guaranty is on a printed form supplied by the creditor. (See Farmers State Bank, 80 Ill. App. 3d at 961-62, 400 N.E.2d at 707; Dee, 84 Ill. App. 3d at 1024, 406 N.E.2d at 198; McLean County Bank v. Brokaw (1988), 119 Ill. 2d 405, 412, 519 N.E.2d 453, 456.) The trial court\u2019s decision to award costs but not attorney fees above the $90,000 limit is inconsistent. However, in strictly construing the contract against plaintiff, the trial court correctly denied its request for attorney fees.\nAccordingly, we reverse the entry of summary judgment for plaintiff and remand for further proceedings consistent with this opinion.\nReversed and remanded.\nSTEIGMANN, P.J., and GREEN, J., concur.", "type": "majority", "author": "JUSTICE COOK" } ], "attorneys": [ "John P. Wolgamot (argued), of Kurth, Wolgamot & DeArmond, of Danville, for appellant.", "Steven M. Helm (argued) and Nancy S. Johnson, both of Dukes, Martin, Helm & Ryan, Ltd., of Danville, for appellee." ], "corrections": "", "head_matter": "CITY NATIONAL BANK OF HOOPESTON, Plaintiff-Appellee and Cross-Appellant, v. DEAN RUSSELL, Defendant-Appellant and Cross-Appellee.\nFourth District\nNo. 4 \u2014 92\u20140910\nArgued May 24, 1993.\nOpinion filed June 29, 1993.\nJohn P. Wolgamot (argued), of Kurth, Wolgamot & DeArmond, of Danville, for appellant.\nSteven M. Helm (argued) and Nancy S. Johnson, both of Dukes, Martin, Helm & Ryan, Ltd., of Danville, for appellee." }, "file_name": "0302-01", "first_page_order": 320, "last_page_order": 329 }