Beebe v. Kirkpatrick

• Citation: 152 N.E. 539,321 Ill. 612
• Decision Date: 16 June 1926
• Docket Number: No. 17210.,17210.
• Parties: BEEBE v. KIRKPATRICK et al.
• Court: Supreme Court of Illinois

321 Ill. 612

152 N.E. 539

BEEBE

v.KIRKPATRICK et al.

No. 17210.

Supreme Court of Illinois.

June 16, 1926.

Error to Appellate Court, Third District, on Appeal from Circuit Court, McLean County; Edward Barry, Judge.

Suit by Maude E. Beebe against Doris Kirkpatrick and others, as heirs at law of Henry S. Dooley, deceased. Judgment of the Appellate Court affirmed the decree of the circuit court for plaintiff, and defendants brings error.

Reversed.Stone & Taylor, of Bloomington, for plaintiffs in error.

William R. Bach, of Bloomington, for defendant in error.

HEARD, J.

This is a review, upon certiorari, of a judgment of the Appellate Court for the Third district affirming a decree of the circuit court of McLean county in favor of defendantin error against plaintiffs in error in a suit brought by defendant in error against plaintiffs in error, as heirs at law of Henry S. Dooley, to enforce the payment by them of a liability of their ancestor.

On December 28, 1912, Henry S. Dooley sold certain houses and lots in Bloomington to J. W. Bishop and took from him a purchase price mortgage for $3,200 securing three notes, two for $1,250 each and one for $700. A portion of the property was afterwards released from the lien of the mortgage and the debt reduced $700. At the time of the taking of these notes Dooley was the conservator of the estate of Mary A. Brown. In June, 1913, he, as such conservator, made a report to the county court of McLean county, in which report appeared the following item: ‘Paid account of J. W. Bishop loan $2,500.’ On October 8, 1913, Dooley died intestate, leaving him surviving his widow, Eda Dooley, and Doris Kirkpatrick and Esther Havens, as his only heirs at law. Samuel C. Dooley was appointed administrator of his estate on October 20, 1913, and on March 30, 1914, filed in the county court of McLean county an inventory of the real and personal property of Henry S. Dooley. The notes in question were found by the administrator among the effects of the deceased and by him turned over to William R. Bach, who succeeded Dooley as conservator of the estate of Mary A. Brown. When found by the administrator each of these notes had indorsed thereon, ‘I hereby guarantee this loan. Henry S. Dooley.’ The evidence does not disclose when or under what circumstances these notations were made. Samuel C. Dooley, as administrator, fixed upon the July term, 1914, of the county court of McLean county as the time for the adjustment of claims against the estate of Henry S. Dooley and gave due notice thereof. Shortly after the death of Dooley Mary A. Brown died, and Bach, by virtue of his appointment as conservator, administered her estate. On October 14, 1914, he sold the notes to defendant in error for their face value and interest, and she held them and collected the interest thereon until their maturity, December 28, 1915, at which time she agreed in writing with the then owners of the real estate mortgaged to extend the time of payment of the notes for the further term of one year. Samuel C. Dooley resigned as administrator of the estate of Henry S. Dooley in May, 1915, and on June 16, 1915, filed his final report as such administrator, and in this report included as receipts items which are claimed by defendant in error to have not been included in the inventory of March 30, 1914, and which items she claims are after-discovered assets. In this report he showed payments to plaintiffs in error, as distributive shares of the estate, sums greater than the amounts adjudged against them by the decree of the circuit court. May 18, 1915, Eda Dooley, the widow, was appointed administratrix de bonis non, and acted as such until April 27, 1916, at which time she presented her final report to the county court and was discharged as such administratrix and the estate declared settled. At the October, 1916, term of the county court of McLean county W. B. Leach was appointed administrator de bonis non of the estate of Henry S. Dooley. At the June, 1917, term of said court defendant in error filed her claim against the estate of Henry S. Dooley in said court upon the two notes here in question. June 7, 1917, Leach, as administrator de bonis non, entered his appearance in said court in the matter of these claims. So far as this record shows, no further action was ever taken in the county court upon these claims. The notes not being paid at the time of their maturity as extended, defendant in error demanded payment from plaintiffs in error, which, being refused, she filed the bill herein against them, as heirs of Henry S. Dooley, upon the alleged guaranties upon two theories as stated in her brief: First, that uninventoried assets of the estate of Henry S. Dooley came to plaintiffs in error, who were the only heirs at law; and, second, that if there was a deficiency of personal assets in the estate of Henry S. Dooley, his heirs, who admitted the receipt of large amounts of real estate, were personally responsible to defendant in error. Prior to the commencement of this action no attempt was made by defendant in error to enforce collection of the notes either from the maker, from the owners of the mortgaged premises, or by foreclosure of the mortgage.

It is contended by plaintiffs in error that the writings in question on the back of the notes were nullities for want of contracting parties, the notes never having been delivered by Dooley in his lifetime, but remained in his hands at the time of his death. In the view which we take of this case we do not deem it necessary to pass upon this question. It is claimed by defendant in error that the writings were valid, absolute guaranties of the payment of the notes.

In this state contracts of guaranty of negotiable instruments are of two kinds: Contracts guaranteeing the collection of the notes, and contracts guaranteeing the payment of the notes. A contract guaranteeing the collection of a note or debt is conditional in its character, and the guarantor thereby undertakes to pay the debt upon condition that the owner thereof shall make use of the ordinary legal means to collect it from the debtor with diligence but without avail. A contract guaranteeing the payment of a note or a debt is an absolute contract, and by it the guarantor undertakes, for a valuable consideration, to pay the debt at maturity if the principal debtor fails to do so, and upon it, if the debt is not paid at maturity, the guarantor may be sued at once. Dillman v. Nadelhoffer, 160 Ill. 121, 43 N. E. 378;Newlan...