Sea v. Glover
| Decision Date | 30 April 1878 |
| Citation | 1 Ill.App. 335,1 Bradw. 335 |
| Parties | SIDNEY W. SEAv.JOSEPH O. GLOVER. |
| Court | United States Appellate Court of Illinois |
Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding
Messrs. McDaid & Knight, for plaintiff in error; contended that the instruments sued on were not promissory notes, and cited Story on Prom. Notes, § 113; Parsons on Bills and Notes, 38; Kelly v. Hemmingway, 13 Ill. 605; Barker v. Athern, 35 Ill. 364; Alexander v. Thomas, 16 Q. B. 383; Hurschel v. Mahler, 3 Denio, 428.
That the notes had not matured when the action was commenced: Rev. Stat. 1874, Chap. 98, § 15; Ewing v. Bailey, 4 Scam. 420; Hall v. Jones, 28 Ill. 55.
As to the contract of guaranty, and that it had reference to the maturity of the notes as indicated on their face: 2 Parsons on Bills and Notes, 125; Klein v. Currier, 14 Ill. 237; Story on Prom. Notes, §§ 21, 27, 30, 31.
That the provision in the notes, that in default in payment of interest the whole might be declared due, is in the nature of a penalty: Tiernan v. Hinman, 16 Ill. 401.
That the court had no right to order the case advanced for trial under the five-day rule: Fisher v. Nat. Bank of Commerce, 73 Ill. 34; Kidder v. Rand et al. 73 Ill. 38; Angel et al. v. Plume & Atwood Mf'g. Co. 73 Ill. 412; Griswold v. Shaw, 79 Ill. 449.
Mr. B. C. Cook, for defendant in error; upon the authority of the court to order the case advanced for trial, cited Wallbaum v. Haskin, 49 Ill. 313; Titsworth v. Hyde, 54 Ill. 386; Fisher v. Nat. Bank of Commerce, 73 Ill. 34; Smith v. Third Nat. Bank, St. Louis, 79 Ill. 118; Owens v. Ranstead, 22 Ill. 161.
On the fourteenth day of December, 1877, the defendant in error instituted suit in the Superior Court of Cook county against the plaintiff in error upon the guaranty of two promissory notes, the first of which is as follows:
+----------------------------------------+
¦“$3,000.¦Chicago, Illinois, May 9, 1874.¦
+----------------------------------------+
Five (5) years after date, for value received, I promise to pay to order of myself, the principal sum of three thousand dollars, with interest thereon at the rate of ten (10 per cent.) per cent. per annum, payable half-yearly, to wit: On the 9th day of November and of May in each year, until said principal sum is fully paid, and both principal and interest payable at the office of J. D. Harvey, Chicago, Illinois.”
“The several instalments of interest aforesaid, for said period of five (5) years, are further evidenced by ten interest notes or coupons of even date herewith.”
“It is further expressly agreed that if default be made in the payment of any one of the instalments of interest aforesaid, at the time and place aforesaid, when and where the same becomes due and payable, and such default shall continue thirty days after such instalment becomes due and payable, as aforesaid, then, and in that event, the said principal sum of three thousand dollars shall, at the election of the legal holder thereof, at once become and be due and payable, anything hereinbefore contained to the contrary notwithstanding, such election to be made at any time after the expiration of said thirty days, without notice.”
“The payment of this note is secured by trust deed on real estate in Chicago, Cook county, Illinois.
Margaret her + mark. Corcoran.”
“Witness:
Charles H. Lawrence,
O. R. Glover.”
To which is added a power of attorney to confess judgment thereon, in the usual form.
The second of said notes is the same in terms and tenor, differing only in date and amount, bearing date July 10th, 1874, and falling due on the 9th day of May, 1879, being for the sum of $500, with ten (10) per cent. interest, payable semiannually, the same as the other note. Upon the back of each of said notes is the following guaranty:
“For value received I hereby guaranty the payment of the within note at maturity, waiving notice and protest, with interest at ten (10) per cent. per annum till paid, and all costs and expenses paid or incurred in collection of the same.
(Signed) S. W. Sea.”
To the declaration filed in said case, the plaintiff in error pleaded the general issue, and filed therewith his affidavit of merits as required by the statute; and afterwards on the 15th day of March, 1878, being the March term of said court, the court on motion of the defendant in error, advanced said cause out of its order upon the docket, impaneled a jury, and tried and disposed of the same, resulting in a verdict and judgment against the plaintiff in error, to which he excepted and brings the record here on error, and asks a reversal upon the grounds, first, that the court erred in advancing said cause out of its order on the docket against the objections of the plaintiff in error; second, that the court erred in ordering said cause to be tried out of its order on the docket; and that the evidence does not sustain the verdict. There are many other errors assigned, a consideration of which is deemed unnecessary.
It is urged by the plaintiff in error that the suit is prematurely brought upon the guaranty against the plaintiff in error; that by the terms of the notes they would mature on the 9th day of May, 1879, and insists that the import and extent of his undertaking as guarantor was that he would pay said notes if they were not paid by the maker at that time, and that he is not liable upon his guaranty to pay said notes sooner, notwithstanding the holder should, in pursuance of the stipulations contained in said note, declare the whole, both principal and interest, due for the non-payment of the interest for a period of thirty days or upward, and that his obligation imposes no liability upon him to pay sooner than the 9th of May, 1879. It is also insisted by him that the obligation guaranteed by him is not a promissory note, and is therefore not to be governed by the rules of law applicable to such obligations. We have examined the authorities to which we have been referred upon that subject, and reached the conclusion that it is such an obligation as is denominated by the law a “promissory note,” and as such negotiable; but for the purposes of this determination we regard it as wholly immaterial whether it be technically a promissory note or not; it is an undertaking; it is a contract, as admitted by the plaintiff in error, for the payment of money; it is an obligation, the performance of which he had a right to guaranty, and we think the contract of guaranty is broken whenever the maker fails to perform any material part of the contract thus guaranteed. The undertaking of the plaintiff in error is, that the maker of the note shall meet her undertaking according to the terms and spirit of her contract; she not having done so, his contract of guaranty is broken, and his liability thereupon arises. Hall v. Jones, 32 Ill. 38.
By the terms of the note, if the interest remain unpaid for 30 days, it became the right of the holder to elect to declare the same due. He held said note for 30 days then, giving 3 days of grace, and then declared the entire note due; but it is insisted by the plaintiff in error, that he should have had notice of such election before suit brought. We think there is nothing in this point. A note payable on demand has been held to become due by bringing suit thereon, thus treating the suit as a demand, at once making the note due and proceeding to its collection by the same acts. Supra.
To the same effect our own Supreme Court have held in several cases, so that we think the holder of this note had the right to declare it due, as he did, and that the bringing of suit was notice of such election.
The question raised by the first assignment of error, namely, the advancement of the case out of its order upon the docket under the following rule: “Ordered, that in any case ex-contractu pending on an issue or issue of fact only, or only requiring the similiter to be added, if the plaintiff or an attorney or agent of the plaintiff shall make an affidavit that he or she believes the defense is made only for delay, the plaintiff by giving the defendant's attorney or the defendant, if he or she do not appear by attorney, five days' previous notice, with a copy of such affidavit, that the plaintiff will bring on said case for trial at the opening of court on a day to be specified in said notice, or as soon thereafter as the court will try the same, may proceed to a trial, at the time specified in said notice, unless it shall be made to appear to the court by affidavit of facts in detail, that the defense is made in good faith, when the case will remain to be tried in its regular order on the trial calendar,” is a question which we had considered settled by this court and the Supreme Court of the State; but it is urged by distinguished counsel with great ingenuity and plausibility, that the...
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