| Ill. | Apr 15, 1866
delivered the opinion of the Court:
This was an action of covenant in the Jo Daviess Circuit Court, brought by James M. Harris and Bobert S. Harris against George Yoltz, and a verdict and judgment for the plaintiffs.
The case was this: The Harrises had leased to one John Widmer certain premises in Galena, for the term of five years commencing on the first day of September, 1859, at a yearly rent of $500, payable in monthly installments of forty-one dollars and sixty-six cents, on the first day of each month. The lease was executed on the second day of September, 1859, and on the same day, on the back thereof, Voltz signed a guaranty to the effect that he would be responsible for the rent and for all damages the lessors might sustain by reason of non-complionce or fulfillment of the lease by Widmer. Harris required security, and Voltz guaranteed the rent by this writing. Default was made in the payment of the rent by Widmer for part of the years 1860 and 1861, and for all the subsequent years. On the 18th of February, 1865, one of the plaintiffs met the defendant on the street and presented to him the amount due for rent from Widmer, and then told defendant that Widmer had gone away, and he could not collect it of him, and that he, Voltz, must pay it. This Voltz refused to do. Widmer left G-alena in 1862, when one Weber took possession of the premises. From that time onward Widmer exercised no control over the premises.
The cause was submitted to the court without a jury, and the court found for the plaintiffs nine hundred and sixty-four TVo dollars in damages. A new trial was refused, and judgment was entered on the verdict, to reverse which Voltz prosecutes this appeal.
The points made by appellant are, first, that inasmuch as the plaintiffs’ demurrer to the defendant’s sixth plea was overruled, and no leave asked to withdraw the demurrer and reply, judgment should have been rendered against them.
The additional record filed in the cause, shows that, after the decision on the demurrer, a replication was put in to that plea tendering an issue to the country on the fact of notice, by Voltz, of Widmer’s default. There was no similiter added, but that is not made a point, and if it was, it would be settled by the cases of Armstrong v. Mach, 11 Ill. 116" date_filed="1849-12-15" court="Ill." case_name="O'Conner v. Mullen">11 Ill. 116, and Kelsey v. Lamb, 21 id. 559.
The principal objection made by the appellant is, that reasonable notice was not given to him of the default of Widmer, and for that reason, he had no opportunity of paying the rent and procuring indemnity from Widmer — that he should have been notified of each default, as it occurred, and reference is made in support of this position to the case of White v. Walker, 31 Ill. 438. In that case, the court intimate, that “ it would seem but reasonable, the party so liable, that is, secondarily, should have notice of the default, so that he might pay what was due without being harassed by a suit, or procure indemnity. In that case the non-payment of the rent rested entirely in the knowledge of the lessors, and it is in this connection the above remark of the court was made. It is more an intimation, by the judge delivering the opinion, of the propriety of such a rule, than a decision by the court, that such is the rule in this court.
This court decided in Heaton v. Hulbert, 3 Scam. 489, that a guarantor of a promissory note was not entitled to notice of non-payment by the makers, for the reason that the guarantor was primarily liable.
By the terms of the guaranty in this case, the liability of the guarantor was primary and for all the rent, and consequently he was not entitled to notice. It was his duty to see the rent was paid by Widmer or by the person he had let into possession. Besides, the appellant does not show he has suffered any loss or injury by a want of notice. On the authorities cited for the appellees, such showing was necessary. If he could not have profited by notice, and has lost nothing for the want of notice, there is no reason why he should complain. He entered into the contract of guaranty with his eyes open, and must perform all its stipulations, unless he can show the appellees have been guilty of some loches, by which he has been injured. Rhett v. Poe, 2 Howard (H. S.) 457; Farmers & Merchants’ Bank v. Kercheval, 2 Mich. 504" date_filed="1853-01-15" court="Mich." case_name="Farmers & Mechanics Bank v. Kercheval">2 Mich. 504. This not having been shown, the judgment must be affirmed.
Judgment affirmed.