| Ill. | Jan 15, 1864
delivered the opinion of the Court:
This was an action of assumpsit upon a guaranty of the appellant, of a promissory note made by George Bressler and Charles Fischer, payable to the appellee, but from which Fischer’s name had been erased by the consent of all parties. The declaration contained five counts, the first two of which were abandoned. The appellant pleaded the general issue, accompanied with an affidavit of its truth and two special pleas. To the second and third pleas a special demurrer was interposed and sustained. The second plea is simply a traverse of a portion of the facts which the plaintiff was bound to prove, in order to establish a prima facie right to recover under his declaration. It is well settled that such a plea is bad as amounting to the general issue. The third plea is, that the promise alleged in the fourth cotint of the declaration was not in writing, and therefore void. The demurrer to this plea was properly sustained. The count sets forth all the facts necessary to constitute a legal liability on the part of the defendant: the making of the note, the guaranty of the same by the defendant, the erasure of Fischer’s name therefrom by the mutual consent of all parties, and then avers that the defendant, in consideration of the erasure of Fischer’s name,- verbally promised that he would guaranty the payment of the note; and that his original guaranty of the same should remain in full force. The last allegation is clearly surplusage, and the plea that this verbal promise was not in writing, was bad for immateriality. On the trial in the court below, it appeared in evidence that Bressler and Fischer, the makers of the note, were copartners and, as such, had borrowed the money of appellee for which the note was given. The appellant guaranteed the payment of the note before the money was obtained or the note delivered. Afterwards a controversy arose between Bressler and Fischer, and they dissolved their copartnership and made a settlement of their business, by which Bressler was to retain the assets of the firm and pay the note in question; and as a practical mode of discharging Fischer from his liability thereon, it was proposed that his signature should be erased. They understood that it was necessary for them to obtain the consent of appellant in order to have the erasure made, and they went together to see him for that purpose. They stated to appellant that they had dissolved their copartnership and settled their business; that Bressler was to retain the assets and pay the note, and that Fischer desired to be discharged from liability thereon,- and asked appellant if he was willing that Fischer’s name should be erased from the note. The appellant declared to them that he was perfectly willing it should be done. It is evident that appellant knew the object and purpose of requesting his assent, and he gave it with a full knowledge that it would or might be acted upon. After obtaining the assent of áppellant, Bressler went immediately to" appellee and informed him of what had-transpired between appellant, Fischer and himself; and thereupon" appellee caused Fischer’s name to be erased from the note. It was urged that the erasure of Fischer’s name from' the note rendered it a new contract between appellee and Bressler,' and that appellant could not be held liable thereon without a new contract to that effect between appellee and himself. It is undoubtedly true that the discharge of Fischer, without appellant’s consent, would have discharged him from liability; but" it does not necessarily follow that the consent necessary to continue his liability must be formally made the subject of a contract between him and the holder of the note, or that it should be communicated to the latter by the former, in person, or by his authorized agent. It is not necessary for us to define the precise nature of the contract after the erasure of Fischer’s name therefrom. He was undoubtedly discharged from liability by that act, and the sole question is, whether appellant was also discharged. It is" not contended that appellant would have been discharged if he had expressly authorized Bressler to assent to the erasure of Fischer’s name, but in the absence of such authority it is claimed that appellee acted at his peril. It is evident that appellant knew that his declarations made to Bressler and Fischer would be communicated to appellee. They were made with a view of influencing his action, and had a tendency to mislead him, and he was in fact misled by them, if they were not a sufficient expression of appellant’s assent to continue his liability. The law requires of every man circumspection and good faith whep. he makes declarations upon which he knows others may act to their prejudice; and appellant was not at liberty by his declarations to induce appellee to believe that he consented to Fischer’s discharge, when he must have known that such belief would influence the conduct of appellee, if he was not willing the belief thus created should be acted upon. He ought not now to be permitted to assert that his own deliberate declarations were not a sufficient authority for action, to the injury of those who, under such circumstances, acted upon them in good faith. Estoppels in pais .are to prevent injuries from acts and representations which have been acted upon. A declaration to constitute an estoppel must be one the injurious influence of which might and ought to have been foreseen. It must be acted upon in good faith, and the person acting upon it must have changed his situation so that injury would result to him if the party making the declaration were allowed to retract it. In the present case, we think that the injurious influence of the declarations of appellant were foreseen by him when he made them; " They were acted upon by the appellee, and injury would result to him were appellant allowed to retract. Upon the trial in the court below, Bressler was called as a witness by appellee. If he had any interest in the suit it was against the party calling him. The witness was liable, at all events, for the amount of the debt, and to him it was not material whether that liability was to appellee or appellant. If the party by whom he was called was successful, there might have been a further liability against him for costs, but not otherwise; and we know of no rule of law which prevents the payee of a note from calling the maker to charge the guarantor.
Judgment affirmed.