{ "id": 5371481, "name": "American Credit & Trust Company, Plaintiff in Error, v. Robert Witz et al., Defendants in Error", "name_abbreviation": "American Credit & Trust Co. v. Witz", "decision_date": "1914-05-04", "docket_number": "Gen. No. 19,139", "first_page": "184", "last_page": "188", "citations": [ { "type": "official", "cite": "186 Ill. App. 184" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "231 Ill. 528", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5635604 ], "opinion_index": 0, "case_paths": [ "/ill/231/0528-01" ] }, { "cite": "164 Ill. 255", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5502644 ], "opinion_index": 0, "case_paths": [ "/ill/164/0255-01" ] } ], "analysis": { "cardinality": 387, "char_count": 8060, "ocr_confidence": 0.501, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3662562952511903 }, "sha256": "1e170f8c44de7ebb39c5a78a95fd6b2f39253d505c37c385216cc7d9573d64c5", "simhash": "1:da64dbc2ba0cfe0a", "word_count": 1349 }, "last_updated": "2023-07-14T19:18:25.002075+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "American Credit & Trust Company, Plaintiff in Error, v. Robert Witz et al., Defendants in Error." ], "opinions": [ { "text": "Mr. Justice Brown\ndelivered the opinion of the court.\nThe Municipal Court of Chicago dismissed a suit brought in that court by the plaintiff in error against the defendants in error, with \u201cjudgment as in case of nonsuit\u201d and for costs. The dismissal was on motion of defendants and was ordered, we shall assume from the course of procedure and the arguments before us, because the court did not consider that the \u201cstatement of claim\u201d stated a cause of action. We do not think it did. The claim is that the defendants executed and delivered to the plaintiff a contract of guaranty as follows :\n\u201cIn consideration of the sum of one ($1.00) dollar and other valuable considerations paid by American Credit and Trust Company to each of the undersigned, receipt of which is hereby acknowledged, they and each of them do hereby jointly and severally guarantee to American Credit and Trust Company, its successors or assigns, the full, prompt a/nd faithful payment, performance and discharge by The Wi-Ko Electric Company of each of the provisions and conditions of the agreement on reverse side hereof, or any other instrument given or executed in pursuance thereof.\nThe undersigned hereby jointly and severally waive all notice of default by first party, and waive notice of acceptance of this guaranty by American Credit & Trust Company, its successors or assigns.\nIn Witness Whereof, we have hereunto set our hands and seals this fourth day of August, A. D. 1911.\nRobert Witz. (Seal)\nS. Korf. (Seal)\nA. D. Anscher. (Seal) \u201d;\nand that by virtue of this contract of guaranty the defendants became and were liable to the plaintiff for the full face value of each and every of certain accounts receivable by the Wi-Ko Electric Company, which are set forth; that each and every of the accounts receivable aforesaid are due and unpaid to the plaintiff, although the time of payment has long since elapsed; and that there is in the possession of the plaintiff applicable to the payment of accounts receivable aforesaid the sum of $245.14, leaving a balance due and owing to the plaintiff of $218.71, for which it brings suit.\n(The italics in the contract of guaranty are ours.)\nIt is manifest that the only question for us to decide is whether by virtue of the contract of guaranty the defendants did become liable for the amount of the unpaid accounts receivable mentioned. This depends as manifestly on what the Wi-Ko Electric Company undertook and promised to do by \u201can agreement on the reverse side\u201d of the guaranty, or by \u201cany other instrument given or executed in pursuance of\u201d an agreement on the reverse side of the guaranty. The agreement on the reverse side of the guaranty is incorporated in the \u201cstatement of claim.\u201d It is signed by the Wi-Ko Electric Company by Robert Witz, president, and by the American Credit & Trust Company by its president. It recites that the Wi-Ko Electric Company is desirous of selling to the American Credit & Trust Company certain \u201cAccounts Receivable,\u201d and that the Trust Company agrees to buy them at a certain discount and on certain terms of payment. The things which the Wi-Ko Electric Company agrees to do are: (a) To pay the Trust Company all expenses and attorney\u2019s fees incurred by said Trust Company in and about the collection of any account in default, (b) To assign and set over to the Trust Company such accounts as are purchased by it, to the end that the Trust Company shall become subrogated to all of the rights possessed by first party in respect thereto, (c) To make entries upon its books disclosing the sale to the Trust Company of the accounts purchased and allow the Trust Company inspection of all records pertaining thereto at all times, (d) To furnish the Trust Company once every year statements concerning the financial responsibility of the Wi-Ko Company. As no one of these things includes the payment by the Wi-Ko Company or even the guaranty by the Wi-Ko Company of the \u201cAccounts Receivable\u201d which it is to sell, it is clear that the defendants are not liable to the plaintiff on their guaranty for \u201cthe full face value\u2019 \u2019 of any accounts receivable, by virtue of anything which the Wi-Ko Electric Company undertook to do by the \u201cagreement on the reverse side\u201d of the guaranty.\nThe only question remaining, therefore, is whether they are so liable by virtue of what the Wi-Ko Company has agreed to do by any other instrument given or executed in pursuance of the agreement on the reverse side of the guaranty.\nThis the plaintiff answers with a certain plausibility in the affirmative, but we cannot assent to his conclusion. Incorporated in the statement of claim is a list of the certain accounts receivable, for the full face value of which the plaintiff says the defendants are liable because they are due and unpaid, and certain written and printed assignments to the Trust Company signed by the Wi-Ko Company of these with other accounts. Various recitals and guaranties concerning their nature' and condition follow the words of assignment, and the concluding printed words of the document are:\n\u201cIn consideration of the premises aforesaid and the further sum of one dollar to the undersigned heretofore paid, the undersigned hereby guarantees the payment in full to American Credit and Trust Company, its successor or assigns, of the above named contracts and open accounts in accordance with the terms indicated and appearing thereon.\u201d\nAlthough this guaranty by the Wi-Ko Electric Company appears in and as a part of a paper which is undoubtedly, so far as the portion which assigns the accounts receivable, \u201cin pursuance of\u201d the agreement on the reverse of defendants\u2019 guaranty, we do not think that so far as this \u201cguaranty of payment\u201d goes, it is \u201can instrument given or executed in such pursuance.\u201d The guaranty of payment is entirely collateral to the assignment and not necessary to it or to any of the stipulations on the reverse of the defendants\u2019 guaranty.\nIf this provision is to be reckoned as covered by the defendants\u2019 guaranty, so might any other promise, bond or obligation, however disconnected with the assignment of the account, if only it were incorporated with it.\nThe defendants Anscher and Korf, who were the only persons served and appearing below, were no parties to this instrument, and cannot be supposed to know of its collateral provisions.\nA guarantor\u2019s obligation is strictly construed in Illinois. Tolman Co. v. Rice, 164 Ill. 255; Phoenix Mfg. Co. v. Bogardus, 231 Ill. 528.\nThe judgment of the Municipal Court is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Brown" } ], "attorneys": [ "Frank Schoenfeld, for plaintiff in error.", "Samuels & Samuels, for defendants in error." ], "corrections": "", "head_matter": "American Credit & Trust Company, Plaintiff in Error, v. Robert Witz et al., Defendants in Error.\nGen. No. 19,139.\n1. Guaranty, \u00a7 9 \u2014construction. A guarantor\u2019s obligation is strictly construed in Illinois.\n2. Guaranty, \u00a7 12 \u2014contract construed as to liability of guaran. tors for performance of a contract. Where a contract guaranties the performance by a certain company of its agreement on the reverse side of the guaranty or any other instrument executed in pursuance thereof, and there was an agreement on the reverse side of the guaranty in which it was agreed that said company should assign certain accounts receivable to the plaintiff with certain conditions in no one of which the company agreed to be liable for their payment and there was another and separate document by which the company formally assigned the accounts receivable and guarantied their payment, held that the guarantors were not liable on their guaranty for the payments of the accounts, that the assignment agreement did not require payment by the company, and that the company\u2019s guaranty agreement could not be construed to have been executed in pursuance of the agreement.\nError to the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge presiding.\nHeard in this court at the March term, 1913.\nAffirmed.\nOpinion filed May 4, 1914.\nRehearing denied.\nFrank Schoenfeld, for plaintiff in error.\nSamuels & Samuels, for defendants in error.\nSee Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number." }, "file_name": "0184-01", "first_page_order": 230, "last_page_order": 234 }