Maloney v. Brandt
| Decision Date | 18 November 1941 |
| Docket Number | No. 7586.,7586. |
| Citation | 123 F.2d 779 |
| Parties | MALONEY v. BRANDT. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph A. Golde, A. C. Lewis, and Philip E. Golde, all of Chicago, Ill., for appellant.
Seymour N. Cohen, of Chicago, Ill. (Ralph M. Snyder, of Chicago, Ill., of counsel), for appellee.
Before EVANS and KERNER, Circuit Judges, and BRIGGLE, District Judge.
Plaintiff sues upon a promissory note coupled with a certain "Extension Agreement" upon which she charges the defendant with liability. From a judgment rendered against defendant in the sum of $4,214.17 defendant appeals.
The note in question, in the principal sum of $3,000, was executed by Oscar W. and Hanna Fredrickson on July 20, 1923, payable five years after date to their own order with interest. To secure payment of same the makers executed a certain trust deed or mortgage of even date conveying to the defendant as Trustee certain described real estate located in Cook County, Illinois. On July 20, 1930, the note being past due and unpaid, and the defendant having in the meantime become the owner in fee of the real estate in question, the extension agreement, the construction of which presents the principal controversial question here, was entered into. The pertinent parts of this agreement are appended in a footnote.* This instrument was executed by the defendant, his wife Gertrude R. Brandt (since deceased) and one Harry C. Swanstrom as agent for the legal owner and holder of said note. Defendant and his wife also executed ten certain interest or coupon notes each in the sum of $90 and evidencing the semi-annual interest to become due on the principal note during the five year extension period from 1930 to 1935. These interest notes were all paid except a balance of $60 remaining on the one falling due on January 20, 1935, and the last one ($90), falling due July 20, 1935.
Plaintiff asserts that by reason of the extension agreement defendant became obligated to pay the principal note according to its terms as well as the remaining unpaid coupon notes. Defendant, while in effect conceding liability as to the unpaid coupon or interest notes, contends chiefly (1) that under a proper construction of the extension agreement no obligation attached to him to pay the principal note, and (2) that the extension agreement not being signed by the plaintiff, nor in her name, is not binding upon either plaintiff or defendant.
The extension agreement in question appears to be a form in somewhat general use and, in substantially identical form has been before the Appellate Courts of Illinois on three occasions in Rieser v. Engelhart et al., 1933, 270 Ill.App. 620, Lillie v. McFarlin et al., 1940, 304 Ill.App. 27, 25 N.E.2d 896, and Albers v. Moe, 1940, 306 Ill.App. 208, 28 N.E.2d 178. The arguments here advanced by defendant for a construction spelling non-liability have been met and rejected in each of these cases without dissent. Thus, nine separate appellate court judges of Illinois have reached a conclusion contrary to defendant's contention. Judge Igoe on the motion to dismiss the instant case and Judge Wilkerson in its trial each adopted a similar construction. We know of no Court that has held to the contrary. The decisions relied upon by defendant rested upon a construction of instruments different in form and are not controlling.
Defendant concedes that if the Illinois Appellate Court decisions are to be followed that his argument under point (1) falls; but he asserts that these decisions are not binding upon this Court and are erroneous in principle. If the Illinois Appellate decisions referred to correctly express the law of Illinois there can be no question of their binding effect upon this Court, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A. L.R. 1487. In the consideration of White-Phillips Co. v. Graham, 7 Cir., 74 F.2d 417, referred to by counsel, it must be understood that that case was decided in 1934 and the doctrine of Erie R. Co. v. Tompkins was not announced by the Supreme Court until 1938.
We have, however, independent of these decisions analyzed the extension agreement in question and are fully convinced that it adequately expresses the intention of the parties that defendant was to be obligated to pay the principal note in question. It expressly provides that the holder of the note is to extend the time of payment for five years so long as second party (defendant) shall promptly pay the interest and "keep and perform all and singular the covenants and agreements in said note and trust deed contained." The important covenant contained in the note was that of payment. Defendant also agreed to accept the extension on the designated terms, executed interest coupons evidencing the interest to accrue upon the principal sum and agreed that in case of default in the payment of interest or a "failure to keep and perform any one of the covenants and agreements in said note" that the holder could elect to terminate the extension agreement and said principal note should at once become due and payable and "may be collected without notice." The defendant was thus contracting for himself — not for the makers of the note. The...
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American Annuity v. Guaranty Reassurance, No. C-1-95-454.
...first time on review, but should fully and fairly acquaint the trial court with all matters relied upon.") (quoting Maloney v. Brandt, 123 F.2d 779, 782 (7th Cir.1941)). Defendant offers no reasonable justification for its delay in moving to amend its First Amended Answer and assert additio......
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Fredenburgh v. Allied Van Lines, Inc.
...which were not pleaded and thereby frame the issues in the case for counsel. The reasoning stated in an analogous case, Maloney v. Brandt, 123 F.2d 779 (7th Cir. 1941), is equally applicable '* * * It would manifestly be unfair to hold that the trial court had erred in a matter it had not c......
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Cleary v. Indiana Beach, Inc.
...L.Ed.2d 533; Byrne v. Matczak, 3 Cir., 254 F.2d 525, 528, certiorari denied 358 U.S. 816, 79 S.Ct. 24, 3 L.Ed.2d 58; Cf., Maloney v. Brandt, 7 Cir., 123 F.2d 779, 782; McComb v. Goldblatt Bros., 7 Cir., 166 F.2d 387, 389-390. In the latter case we held that an appellant could not raise in t......
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