165 Ill. 55 | Ill. | 1897
delivered the opinion of the court:
Several of the questions raised may be briefly disposed of. The judgment note of February 11, 1893, did not release the defendants from their liability as guarantors. The receipt given for that note clearly recognized the continuation of that liability by stating that it was given as collateral security both for the benefit of the bank and the signers of the contract of guaranty dated 17th of January. We agree with the Appellate Court that the several notes for which it was given as collateral were merged in the confessed judgment by the voluntary act of the bank, and therefore interest was properly computed upon the judgment; also, that the amount paid the bank by the receiver should have been credited on the amount found due it by the judgment, and not upon certain of the notes included in that judgment, as it claimed to have done.
The position of the appellee Elder, that the levy of the execution operated as a satisfaction of that judgment, is clearly untenable. The property levied upon was taken from the sheriff in the chancery proceeding to which he was a party, and, so far as the record shows, the order directing the assets of the company turned over to the receiver has been acquiesced in by him. The levy of an execution upon sufficient personal property to satisfy a judgment is never an absolute satisfaction of such judgment, but is only so sub modo.
Of the plea which the court denied leave to file pending the trial, it need only be said it presented no defense whatever to the action.
The remaining questions in controversy must be determined from the contract itself. In our opinion that instrument is clear and unambiguous in its terms, and must therefore be interpreted and construed according to the language used,—that is to say, the parties must be presumed to have meant that which their language clearly imports. It is not what one of the parties may have intended, but what is shown by the contract to have been the intention of both parties. (Williams v. Fletcher, 129 Ill. 356.) It is only when the language used is ambiguous or of doubtful meaning that the court may resort to construction, taking into consideration all the facts and circumstances surrounding the parties at the time the contract was entered into. The rule that the contract of a surety or guarantor must be strictly construed has no application to this case.
First—The undertaking to guarantee the payment of notes presented from time to time, after the date of the contract, is clearly expressed, and the fact that it was not signed and delivered until after certain of the notes had been discounted or advanced upon was of no consequence. The agreement is not a guaranty of the payment of the notes presented after the signing and delivery of the contract, but of such as should be presented “from time to time from” the date of January 17, 1893. Abrams v. Pomeroy, 13 Ill. 133.
Second—There is nothing in the language employed indicating an intention that it was upon condition that advancement or discounts to the full amount of §12,000 should be made, as contended by appellee Elder. “To the extent of §12,000” clearly expresses the intention that the guarantors shall be liable to that limit, and no further. It fixes the extent to which they would be bound, and in no sense is a condition qualifying their liability. This is the plain, well-understood meaning of the language used, and it cannot be changed, varied or modified by parol evidence. Abrams v. Pomeroy, supra.
Third—We think it equally clear that the obligation was only for the payment of the notes presented subsequently to the date of the contract,—January 17, 1893. “From time to time from date hereof” means “after date hereof.” The date of the note is prima facie evidence of the time of its delivery, and in the absence of proof to the contrary the §500 note bearing the same date as the contract must be held as having been presented on, and not after, that date. The date of an instrument is understood to be the day on which it is written, and “from” or “after” that date clearly means some subsequent day. The question is not whether the note was, in point of time, made after the guaranty was written, but was it “presented” to the bank after the date of such guaranty.
Fourth—Counsel for appellee Elder insist that the defendants, though liable for promissory notes and business paper of the pump company presented after that date, and discounted or advanced upon by the bank, are not liable for any sncb note or notes if they were given in payment of pre-existing indebtedness,—and the circuit and Appellate Courts seem to have sustained that position as to those given in payment of the company’s own notes, but not as to the one for §1572.76, made by a third party to the pump company and discounted for it by the bank. The appellant, on the other hand, insists that it was error to refuse judgment for the three §2000 notes, —one of January 23, and two of January 27. We are unable to see upon what reasoning it can be held that a liability existed upon the §1572.76 note and not upon the other three, and we think that by the terms of the agreement the parties undertook to guarantee the payment of each of them. There is no dispute as to the fact that they were all presented for discount after January 17, 1893,—that is, they were each presented to the bank for the purpose of obtaining the money upon them after that date. Whether that money was delivered directly to the pump company, or by its direction applied in payment of debts due from it to the bank, could by no fair interpretation of the contract make the slightest difference. Nothing whatever is said in the instrument as to the consideration or object for which notes shall be presented or the purpose for which the money advanced or received upon them should be used by the company. If upon their presentation the bank had discounted them and paid the money over its counter to the pump company, and that company had immediately paid the same money back in discharge of its indebtedness then due to the bank, it could scarcely have been contended that the guarantors were not liable by the terms of their guaranty. And yet the transaction as it occurred was in substance the same.
The contention of the defendants seems to be that the three §2000 notes were mere renewals of notes held by the bank. If by this is meant that the old notes were kept alive, or that this action is in any sense for the purpose of compelling the payment of the old notes, the facts do not support the contention. They, were fully paid and discharged and the liability of the parties fixed by the terms and conditions of the new notes made and “presentedV to the bank “from time to time” after the date of January 17, 1893, and this suit is to recover the amount of the new notes remaining unpaid. It is doubtless true, as contended by counsel for appellee Elder, that the object of making the guaranty was to give the pump company additional credit with the bank and relieve it from financial embarrassment, but at least one of the necessities for that additional credit was its indebtedness, and we are unable to discover anything in the instrument itself, or in the oral testimony showing the condition and position of the parties, from which it can be said its liability to the bank was not to be paid with money so obtained, as well as debts owing from it to other parties. It can scarcely be supposed that it was the intention that the bank would advance money from time to time with which to pay other obligations and liabilities, and at the same time leave its own debts wholly unprovided for,—at least there is no such qualification or limitation found in the contract of guaranty, and the court has no power to so construe it.
We do not deem it necessary to enter upon a consideration of the question as to what is regarded by bankers as discounts, but base our conclusion as to the liability of the defendants upon what we regard as the plain and unequivocal meaning of the words of the agreement.
We think the circuit court erred in holding the defendants liable for the §500 note of January 17,1893, and also in holding them not liable for the amount of each of the three §2000 notes,—one dated January 23 and two January 27,1893. Its judgment and that of the Appellate Court will accordingly be reversed, and the cause will be remanded to the circuit court with directions to proceed according to the views herein expressed.
Reversed and remanded.