Knoebel v. Kircher

• Decision Date: 31 January 1864
• Citation: 1864 WL 2924,33 Ill. 308
• Parties: JACOB KNOEBELv.FREDERICK KIRCHER.
• Court: Illinois Supreme Court

33 Ill. 308

1864 WL 2924 (Ill.)

JACOB KNOEBEL

v.FREDERICK KIRCHER.

Supreme Court of Illinois.

January Term, 1864.

APPEAL from Circuit Court of St. Clair county.

Assumpsit by appellee against appellant upon a guaranty by appellant, of a joint and several promissory note, originally executed by George Bressler and Charles Fischer to the appellee, but from which Fischer's name was erased, which note was indorsed as follows: “I guarantee the payment of the within note. Jacob Knoebel.”

The third count of plaintiff's declaration was as follows:--“And for that whereas also heretofore, to wit, on the 6th day of December, 1858, at Belleville, to wit, at the county of St. Clair aforesaid, in consideration of $1,500, then loaned to them by plaintiff, one George Bressler and one Charles Fischer made their certain other promissory note in writing of that date, by which they then and there jointly and severally promised to pay, twelve months after the date thereof, to the said plaintiff or order, the sum of fifteen hundred dollars, for borrowed money, with interest at the rate of ten per cent. per annum, for value received, and the said defendant, then and there, and for the consideration aforesaid, promised the said plaintiff to guarantee the payment of the said promissory note, and the said defendant then and there did guarantee the payment of the said promissory note, by writing his name on the back of the said promissory note, and then and there delivering the same, with his name so written on the back thereof, to the plaintiff. And afterwards, to wit, on the day and year aforesaid, at, &c., aforesaid, by agreement of the plaintiff, the defendant, said Bressler and said Fischer, the name of said Fischer was struck out and erased from said note, and the defendant, in consideration (among other things) of the prejudice thereby accruing to the plaintiff, and of the benefit thereby accruing to said Fischer, then and there agreed with the plaintiff, before and at the time said Fischer's name was so struck out and erased from said note, that he, the defendant, would still continue to guarantee the payment of said note as fully and effectually as in the said original instance. And the said defendant then and there, for the consideration last aforesaid, adopted his signature upon said note aforesaid, and agreed with plaintiff that it should stand as a renewed guarantee upon said note, after the erasure of said Fischer's name therefrom, by means whereof the defendant then and there became liable to pay the sum of money specified in the said note, according to the tenor and effect thereof, and being so liable, the defendant afterwards, to wit, on the day and year aforesaid, at, &c., aforesaid, undertoook and faithfully promised the plaintiff to pay him the money specified in said note, according to the tenor and effect thereof, when thereunto afterwards requested.”

The fourth count besides stating the guarranty in substance, as aforesaid, states that Fischer's name was by mutual consent of plaintiff, defendant, Bressler and Fischer, erased from the note, and that defendant, in consideration of said erasure, verbally promised the plaintiff to guarantee the payment of the note, and agreed with plaintiff that said original guaranty should remain in full effect.

The fifth count states the guaranty in substance, as aforesaid, and that the defendant in consideration that plaintiff at defendant's request (with Bressler's consent) consented that Fischer's name be so erased, promised the plaintiff, to continue to guarantee the payment of the note according to its tenor and effect, and by virtue of said original guaranty.

The defendant's second plea was in substance, that after the execution of the note by Bressler and Fischer, and after defendant's putting his name thereon and its delivery to plaintiff, the plaintiff caused Fischer's name to be erased, and discharged him, Fischer, from liability thereon, without defendant's knowledge or authority.

The remaining pleadings and the facts appearing in evidence are sufficiently stated by the court.

The judgment below was for plaintiff, and the errors assigned relate to the sustaining of demurrers to defendant's second and third pleas, and to the competency of Bressler as a witness for plaintiff.

W. H. Underwood and George Trumbull for appellant.

J. Baker for appellee.

BECKWITH, J.

This was un action of assumpsit upon a guaranty of the appellant, of a promissory note made by George Bressler and Charles...