| Ill. | Feb 17, 1904
delivered the opinion of the court:
The decree is quite lengthy and finds the facts as above set forth. There are but three points raised in this court, and only such parts of the decree as involve these questions need be considered.
It is first insisted by plaintiff in error that by the contract entered into between Ellis, Wolfe and the brewing company Ellis was to be released of liability and Wolfe was to be responsible for the debt. In support of this contention plaintiff in error offered oral testimony as to certain conversations which took place prior to the making of the contracts, but the record shows that all of these conversations were merged into the two written agreements. The evidence does not show that these written agreements contained any mistake or were obtained by fraud. They are therefore binding upon the plaintiff in error, and the contracts, upon their face, do not sustain the contention in that regard.
The decree found that to the extent of $1830.36, with interest, Ellis was indebted to the brewing company as surety for Wolfe, and that the net amount of rents collected by the brewing company was $391.03, and that this should be applied in paying the note of $675 made by Wolfe. This part of the decree, it is insisted, is an attempt to hold Ellis’ property to cover future advances made by the brewing company to Wolfe, and that to the extent of at least one-half of the net rents collected on-the Burnside property Ellis was entitled to credit on the debt for which he was found to be security for Wolfe. We do not think this contention is sustained by either the law or the evidence. The contract released Ellis only upon certain conditions. Before these conditions were complied with, Wolfe defaulted in the payment of the ground rent and taxes to the extent of $675. A part of this default was before the contracts were made. If this sum was not paid the whole property would be forfeited and lost to all parties. Wolfe had no money to make the payment, and to prevent the loss the brewing company made the payment and Wolfe assigned the rents as surety. It is the duty of a creditor to diligently guard and protect effects in his hands for the security of his debt, and the application by the brewing company of the rents towards the discharge of the note given for back ground-rent and taxes was a proper and lawful action on the part of the creditor to protect the surety held by it, and of this provision in the decree plaintiff in error had no ground to complain.
The decree further provides that if, upon the foreclosure sale ordered to be made, enough was not realized to pay the sum of $4495.20, with interest at five per cent, then Ellis’ insurance money, or so much of it as should be necessary to cover the deficit, should be applied to that purpose. It is insisted that this part of the decree is wrong, for the reason that the judgment which was rendered against Wolfe on the note he gave at the time Ellis made the conveyance to him, included $100 attorney’s fees, and it was manifestly improper to hold that Ellis should be charged with the payment of attorney’s fees incurred in entering judgment against Wolfe on his personal note for $675. An examination of the assignment of error shows that this point was not made in the Appellate Court and is raised in this court for the first time, and there is no assignment of error in this court upon which it can be based. We have, however, examined the decree in this respect, and find that the total amount due on said judgment, including attorney’s fees, was found to be $5310.96, of which $4495.20 was due on account of the note representing" the joint liability of Wolfe and Ellis, and the balance was due upon the note representing Wolfe’s individual indebtedness. It does not appear how the attorney’s fee of $100 was charged on these notes. For anything appearing in the record, the fee may have been included in the $815.76 found to be the amount due upon Wolfe’s individual note. But even if the $100 is charged as plaintiff in error claims, Ellis was clearly liable therefor, the note which he gave providing for an attorney’s fee of $100 in case of judgment being entered thereon. For these reasons we find no error in the decree in this respect.
The decree of the superior court and of the Appellate Court will therefore be affirmed.
Decree affirmed.