#### Michigan Avenue Trust Company, Defendant in Error, v. Albert T. Graham et al. Albert T. Graham and William E. Fuller, Plaintiffs in Error.

Gen. No. 22,166.

(Not to be reported in full.)

Abstract of the Decision.

1. Trial, § 204 * —when direction of verdict for plaintiff is error. In an action on a written contract of guaranty, where defendants introduce evidence tending to establish their claim that they had been released from liability thereon, it is error to direct the jury to find for the plaintiff.

Error to the Municipal Court of Chicago; the Hon. Harrt M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.

Reversed and remanded.

Opinion filed May 29, 1917.

Statement of the Case.

Action by Michigan Avenue Trust Company, a corporation, plaintiff, against Albert T. Graham, Harry M. Wells, William E. Fuller and James C. Hopkins, defendants, on a contract of guaranty. By direction of the court, the jury found the issues against the defendants and assessed plaintiff’s damages at $10,000. To reverse a. judgment for this amount and costs, defendants Graham and Fuller prosecute this writ of error.

Jordan & Liessmann, for plaintiffs in error; Elmer M. Liessmann, of counsel.

Benjamin Levering and Elmer H. Heitmann, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice McDonald

delivered the opinion of the court.

*6092. Guaranty, § 34 * —When nonpayment of notes need not "be proved by plaintiff. In an action on a written contract of guaranty, where plaintiff’s statement of claim alleges the execution and delivery of certain notes to it by the debtor, and that such notes had not been paid, except for certain enumerated payments, and defendants’ affidavit of merits makes no defense of payment, plaintiff is not required to prove nonpayment of the notes.