Potter v. Gronbeck

• Decision Date: 12 June 1886
• Citation: 117 Ill. 404,7 N.E. 586
• Parties: POTTER v. GRONBECK and others.
• Court: Illinois Supreme Court

117 Ill. 404

7 N.E. 586

POTTER

v.GRONBECK and others.

Supreme Court of Illinois.

June 12, 1886.

Appeal from First district.

SCOTT, C. J.

There would seem to be no reason why the present judgment should be affirmed, without any reference to the merits of the controversy. It is seen the suit was commenced by ‘Lauchlin McLean, for the use of Delonas W. Potter.’ Afterwards, by leave of court, granted for that purpose, Lauchlin McLean was dismissed out of the suit, leaving Delonas W. Potter the only plaintiff; and since then the suit has progressed in the name of Potter, and he alone appealed from the decision of the trial court. It is obvious there can be no recovery against defendants on the common counts for rent due from the lessees. If any recovery could be had, it must be upon their guaranty of the payment of the rent, and the performance of the covenants of the lease. But can Potter recover on that guaranty in his own name? That depends upon the fact whether the alleged guaranty is assignable, under our statute, so as to enable the assignee to maintain a suit upon it in his own name. It is thought it is not assignable, as is negotiable paper, so as to vest the legal title in the assignee. It is true that, under the statute of this state, any instrument in writing for the payment of money or articles of personal property is assignable, as are bills of exchange, so as absolutely to transfer and vest the property thereof in each and every assignee succeeding. But the guaranty declared upon is not such an instrument. It is to be observed defendants undertook to guaranty the payment of the rent, and the performance of the covenants, by the party of the second part in the within lease, covenanted and agreed in manner and form as in said lease provided, for three years from the date of occupancy. One objection that appears upon the face of the instrument is, it is not an unconditional promise or obligation for the payment of money. Before any rent could be recovered, the fact of occupancy by the lessees must be averred and proved. An instrument depending upon extrinsic proof before it becomes a binding obligation for the payment of money is not assignable, under the statute, so as to vest absolutely the legal title in the assignee. Kingsbury v. Wall, 68 Ill. 311.

But a graver objection appears on the face of the guaranty. It is that the undertakingto guaranty the payment of the rent, and the performance of the covenants of the lease, is an entirety, constituting a single agreement. Certainly that clause that obligates defendants to guaranty the ‘performance of the covenants' of the lease by the lessees is not assignable under the statute, as are bills of exchange. It is not for the payment of money or articles of personal property. If the agreement...