| Ill. App. Ct. | Mar 5, 1901
delivered the opinion of the court.
The execution of the guaranty did not bind Hasterlik Bros., for appellee had no authority to thus obligate the two other defendants, Samuel and Ignatz Hasterlik. It did, however, operate to bind appellee, who, if he had no authority to obligate others, at least had power to bind himself. This he did by executing the guaranty. We are of opinion that the evidence discloses a sufficient consideration for the making of the contract of guaranty. The agreement to sell upon the leased premises the beer manufactured by the company of which appellee was the president, was of itself consideration enough. The trial court held the following as a proposition of law:
“ This court holds as the law in this case that this suit was begun in the justice court by plaintiff against the three Hasterfiks, mentioned in the justice summons as copartners as Hasterlik Bros., and. that the plaintiff has in fact so proceeded, and having so proceeded against said three defendants jointly, he must recover against all three or none, and having dismissed as to Ignatz Hasterlik and Samuel Hasterlik, he can not, in this Superior Court, obtain a judgment against Charles Hasterlik individually.”
We are of opinion that the learned trial judge erred in so holding. This cause having originated in the court of a justice of the peace, it is governed by the statute regulating recovery against joint defendants in such courts.
Sec. 40 of Chap. 79 of the Rev. Stat., being a part of the act which provides for the jurisdiction and practice of justices of the peace in civil cases, provides as follows:
“ If an action be brought against two or more defendants, and it shall appear upon the trial that one or more of the defendants is not jointly liable with the others upon the contract or cause of action sued upon, judgment shall be given against such as appear to be liable and in favor of the others.”
The same statutory provision governed the trial de novo upon appeal.
If so explicit an enactment needed any construction to make its provisions plain, it has been construed or applied to facts similar to those now presented.
In Hellman v. Schwartz, 44 Ill. App. 84" date_filed="1892-03-04" court="Ill. App. Ct." case_name="Hellman v. Schwartz">44 Ill. App. 84, the action was begun against three defendants, sued jointly, upon a claim ex contractu. Upon appeal the cause was tried de novo in the Superior Court, and the jury returned a verdict against one defendant only, finding that the other two were not liable. Upon review by this court it was held that this was a proper procedure in an action which had been begun before a justice of the peace.
The liability of appellee having been clearly established by the evidence, and the amount due upon the guaranty being $200, the judgment of the Superior Court is reversed and judgment is entered here for $200 and the costs .
Reversed, and judgment in this court.