{
  "id": 1673314,
  "name": "Herbert W. Duncanson v. Eliza Ann Kirby",
  "name_abbreviation": "Duncanson v. Kirby",
  "decision_date": "1900-06-14",
  "docket_number": "",
  "first_page": "15",
  "last_page": "17",
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      "type": "official",
      "cite": "90 Ill. App. 15"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "79 Ill. App. 231",
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  "last_updated": "2023-07-14T16:41:07.083929+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Herbert W. Duncanson v. Eliza Ann Kirby."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nThis is an appeal from a judgment in assumpsit in favor of appellee and against appellant, as guarantor, and one John H. Gee, as maker, of a promissory note. The note and indorsements thereon are as follows :\n\u201c 8400 , Chicago, Illinois, May 30, 1897.\nOne year (on or before) after date, for value received, I promise to pay to the order of myself the principal sum of four hundred ($400) dollars in gold coin, with interest thereon at the rate of seven (7) per cent per annum, payable semi-yearly, to wit, on the twentieth day of May and of November in each year, until said principal sum is fully paid. Both principal and interest are payable at room 12, 70 Madison street, Chicago, Illinois.\n\u201c The several installments of interest aforesaid for said period are further evidenced by two (2) interest notes or coupons, of even date herewith.\n\" The payment of this note is secured by trust deed of even date herewith, on real estate in Cook county, Ill.\nNo. 1. John M. Gee.\u201d\nIndorsed on the back thereof :\n\u201c Pay to the order of Eliza Ann Iiirby.\nJohn M. Gee.\u201d\n\u201c I hereby guarantee the prompt payment of the within note at maturity, with interest.\nH. W. 1) UNO ANSON.\u201d\nThe defendants introduced no evidence, and the court, at the close of plaintiff\u2019s evidence, instructed the jury to find for the plaintiff, and assess the plaintiff\u2019s damages at the sum of $444.24, which was done, and judgment was entered on the verdict.\nAppellant\u2019s counsel contend, first, that appellant was an indorser only; second, that the note was secured by trust deed, and that it was incumbent on appellee to exhaust the security before suing on note; third, that appellee\u2019s attorney wrote the guaranty over appellant\u2019s signature shortly before suit brought; and, fourth, that the judgment is general against Gee and appellant, without any provision for the protection of the defendants in the judgment against each other. The evidence for the plaintiff fully sustains the allegation in the declaration that appellant indorsed the note as guarantor, and not merely as guarantor of its collection, but as guarantor of its payment. Aside from the oral evidence to this effect, and in the absence of such evidence, a guaranty would be implied by law from the note and appellant\u2019s indorsement. Appellee is the payee of the note. The law presumes that the signature of appellant was placed on it at the time it was executed, and that, he being a stranger to the note, his contract was that of guarantor, the consideration for the note being the consideration for the guaranty. Maher v. Bldg. & Loan Ass\u2019n, 79 Ill. App. 231; Davis v. Wolff Mfg. Co., 84 Ib. 579, and cases cited.\nAppellant\u2019s contract being that of a guarantor, appellee was fully warranted in writing the express guaranty over his signature. Swigart v. Weare, 37 Ill. App. 258.\nThe judgment was properly entered against both defendants, and it was unnecessary to insert any provision for the protection of the right of either defendant as against the other. Appellant\u2019s rights, if any, as against the maker of the note, are saved by the statute. Hurd\u2019s Stat., C. 93, Sec. 7a.\nThe proposition that it was incumbent on appellee to resort to the security of the trust deed before suing on the note and guaranty, is so clearly untenable as not to require discussion. The contract of guaranty is an original contract, and the guarantor of a promissory note is regarded as an original promisor, and not a surety. Gridley v. Capen, 72 Ill. 11.\nThe judgment will be affirmed.",
        "type": "majority",
        "author": "Mr. Justice Adams"
      }
    ],
    "attorneys": [
      "Alden, Latham & Young, attorneys for appellant.",
      "Rudolph D. Huszagh, attorney for appellee."
    ],
    "corrections": "",
    "head_matter": "Herbert W. Duncanson v. Eliza Ann Kirby.\n1. Guaranty\u2014Of Promissory Note, An Original Contract.\u2014The contract of guaranty is an original contract and the guarantor of a promissory note is regarded in law as an original promisor and not a surety.\n2. Same\u2014Contracts of, in General.\u2014The following writing on the back of a promissory note\u2014\u201cI hereby guarantee the prompt payment of the within note at maturity, with interest. H. W. Duncanson\u201d\u2014is a guaranty of payment and not merely of the collection of the note.\n\"3. Same\u2014Writing an Express Contract Over the Guarantor's Signature.\u2014Where a person puts his signature in blank as guarantor upon the back of a promissory note, the payee of the note, is warranted in writing the express guaranty over the signature.\n4. Presumptions\u2014As tb When an Indorsement is Signed.\u2014The law presumes that the signature of a guarantor on a promissory note was placed upon it at the time the note was executed.\n5. Consideration\u2014Of the Contract of Guaranty.\u2014The consideration of a promissory note is the consideration of the contract of guaranty indorsed upon it.\nAssumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Samuel O. Stough, Judge, presiding. Heard in this court at the October term, 1899.\nAffirmed.\nOpinion filed June 14.\nRehearing denied July 9, 1900.\nAlden, Latham & Young, attorneys for appellant.\nRudolph D. Huszagh, attorney for appellee."
  },
  "file_name": "0015-01",
  "first_page_order": 35,
  "last_page_order": 37
}
