119 Ill. App. 354 | Ill. App. Ct. | 1905
delivered the opinion of the court..
It is urged by appellant that where a guaranty is made, after the completion of a note or contract there is no presumption of consideration, but the contrary, and the plaintiff must prove a new and express consideration in order to enforce it; and that the ruling of the trial court- in this, case that a consideration was to be presumed, was erroneous. Appellant did not except to the ruling of the court. Objection' to it is now urged for the first time. “It comes too. late.” In Montague v. Selb et al., 106 Ill. 49, the court, said: “We have often held a party cannot be allowed to lie by and permit matters to pass unchallenged,' and then urge.them as objections for the first time in this court.” The-ruling in question was made by the court and was acted, upon by appellee and acquiesced, in by appellant. The trial of the case proceeded upon the theory of the ruling without; any question being raised as to its correctness, and it would-be unjust to permit it now to be questioned. As said in Gillham v. State Bank, 2 Scam. 250: “The rules of law regulating trials are designed to facilitate and promote justice. They are not designed as traps to ensnare the unwary or defeat the substantial ends of justice. If a party fails, to introduce some necessary link in the chain of testimony to make out his case, and such failure is evidently the result'of oversight, the proper course for the defendant is to apply for a non-suit, and -then it is a matter of discretion with the« court trying the cause to permit the plaintiff to introduce, further evidence, if he can, to supply the defective link.”
In the case at bar is was not an oversight that the evideuce showing the consideration for the guaranty, if any additional evidence was needed, was not gone into by appellee.. Appellee rested its case only after the court ruled that the-evidence was premature. Appellee in obedience to the ruling, and relying upon the acquiescence of appellant in the ruling, refrained from introducing any evidence as, to-the original transaction out of which the guaranty in question arose.
In Kank. & Ill. River R. R. Co. v. Chester, 62 Ill., 235,, it was claimed on appeal that damages in a condemnation, case should have been assessed separately on two separate tracts composing one farm. The court say (p. 236) : “It is not a question affecting the jurisdiction of the subject matter, and, aside from such questions, it is a rule of general application in courts of law, that if a party acquiesce in the mode of conducting a cause by his adversary, by failing-to object and except in apt time, then whether the question, pertain to the introduction of evidence, the measure of damages, or instructions of the court to the jury, he will be precluded from raising it in the Appellate Court.” See also Selby v. Hutchinson, Admr., 4 Gilm. 319.
Upon the question of consideration we think the guaranty shows a consideration on its face in the words “For value received.” This, at least, is prima facie evidence of a valuable consideration “and the necessity of controlling it is. devolved on the defendant.” 2 Greenleaf on Ev. (16 Ed.), Sec. 105. But whether this guaranty, upon its face, imparts, a consideration, is unnecessary for us to decide; for the-testimony of the witness Johnson and the witness Thompson,, in connection with the testimony of appellant, abundantly proves an adequate consideration. From the testimony of these witnesses it appears without substantial controversy that appellant was a - guarantor upon a promissory note for-$2,500 which matured on November 10, 1902, made by the-Delaney Stone Company and held by appellee. This note was-not paid. Appellee demanded payment of appellant and at appellant’s request for more time the papers as shown in evidence were prepared and signed and delivered. It matters not that the note was executed on November 10, 1902. It was not accepted by appellee in payment of the note maturing on that date until the guaranty in question was executed and delivered. The note and guaranty were then accepted by appellee and the note and guaranty then held by appellee were cancelled and the note was returned to the stone company. This formed a good consideration for the guaranty sued on. The papers were one transaction and the consideration of the note was the consideration for the guaranty.
It is urged by appellant that incompetent evidence was admitted in rebuttal “to the effect that the note of November 10, 1902, was given in payment of a prior note of $2,500 endorsed by the defendant, and that the prior note was not cancelled or delivered up until after the guaranty of December 9, 1902, had been signed and delivered to the plaintiff” without the production of the prior note and putting it in evidence. We find no reversible error in admitting this evidence. Johnson had testified regarding the prior note and the guaranty of appellant thereon, and the arrangement for an extension of time, and the form of the papers, without objection. There was no basis for the objection, upon the ground that the former note was not produced.
We are of opinion that there is no- reversible error in the record, and the judgment of the Superior Court is affirmed.
Affirmed.
