97 Ill. App. 170 | Ill. App. Ct. | 1901
delivered the opinion of the court.
Twelve errors are assigned on the record, the most of which are unnecessary in order to raise the questions involved in the case, and hence need not be specially noticed.
It is urged that the court erred in admitting improper evidence to go to the jury on behalf of appellee, but if so, all that need be said about it is that no objection was made to it, nor was any exception taken to the ruling of the court in admitting it; at least none appears in the abstract.
The principal question raised and argued by counsel is whether appellee is bound by his contract to pay the notes. We do not understand counsel for appellee as contending that if appellee had guaranteed the payment of the notes, on the notes themselves, he would not be liable to pay them, nor could he well maintain such a contention, in view of the well settled rule of law of this State on the subject of absolute guaranties of payment of commercial paper. But it is said by counsel for appellee that “ agreeing to do an act, and actually doing the act, are distinctly separate matters.” This is true, as is demonstrated by the case under consideration. An agreement to do a thing is an obligation to do it, generally expressed in words, while the doing of it is the ultimate thing sought by the agreement and fulfills the obligation.
It is also said by counsel: “ The liability of a guarantor is ascertained by strict construction of his undertaking, beyond which he is in no way bound.” This statement is quite correct; but another rule of law must not be lost sight of in construing agreements, even when claimed to be undertakings to answer for defaults of others, and that is, that parties have a right to make agreements in such language as they may choose to use, and it is the duty of courts construing an agreement, to give force and effect, if possible, to every word used in it. Beech on Modern Law of Contracts, Vol. 1, Sec. 711; Bowman v. Long, 89 Ill. 19; C. B. & Q. R. R. Co. v. Bartlett, 120 Ill. 603.
Appellee knew when he entered into the agreement to sell appellant’s machines, that appellant’s location and place of business was nearly, or quite, a thousand miles distant from the place where the machines were to be sold, and that its general agents could not be expected to have knowledge of the financial conditions of those who would become purchasers of machines; that it was important for appellant to know from the purchasers themselves that they were able to pay for the machines; hence, the plan adopted to get the information, was to require the agent selling the machines on a commission, to require of the purchasers of machines on credit, to furnish information as to their property qualifications, that appellant might know that its machines were being sold to persons to whom it was safe to extend credit. The requirement was reasonable and appellee agreed to comply with it, and if he did not, to assume the burden of the debt himself. It is not pretended that appellee complied with his agreement, or made any effort to do so so, but chose to take the consequences of non-compliance; and these consequences, according to the plain terms of the agree-' ment, were, that he would pay the notes himself if the makers did not pay them when due, and he took upon himself the responsibility of ascertaining that the makers had not paid them. To say, as appellee’s counsel seems to contend, that by appellee’s failure to guarantee the payment of the notes on the back of them, that he was not bound to pay them, because he had not put his guaranty upon them, is in effect saying that he had reserved the power, or at least the privilege, of nullifying his own agreement by doing nothing at all. A construction of the agreement that leads to such a result can not be tolerated. Besides, appellee said in his agreement, “ but failure by said second party to indorse said notes shall not affect the above guaranty of payment.” When once appellee became bound to pay the notes, by his agreement and his failure to secure the property certificates, appellant might safely rely on appellee’s guaranty to pay them, and appellant was not guilty of any laches in failing to proceed against the makers of the notes in an endeavor to collect of them. The authorities in support of this proposition are believed to be uniform, and it would seem a vain display of learning to cite them. When the makers failed to pay the notes as they matured, appellee should have paid them, and looked to the makers to reim- - burse him, at a time when he claims the money could have been realized; and because he did not do so and the makers have since become insolvent, or left the country, as is said by appellee to be the case, appellee is the party guilty of laches, and must suffer the consequences, unless appellant has done some affirmative act that discharges him from performing his contract.
There is some evidence that appellant extended the time of payment of one of the notes, but there is no evidence of any consideration for the agreement to extend it, if any there was.
Whether, if there was a valid extension of the note, it could be said that it was a “ renewal ” of it, so as to bring it within the tenth clause of the agreement, we express no opinion, as the point has not been raised by counsel.
It follows from what has been said that the court erred in instructing the jury to find for the defendant, and for this error the judgment is reversed and the cause remanded.
