Goldenberg v. Myers, 202 Ill. App. 340 (1916)

Dec. 30, 1916 · Illinois Appellate Court · Gen. No. 21,963

202 Ill. App. 340

Max Goldenberg, Appellee, v. E. A. Myers, Appellant.

Gen. No. 21,963.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Reversed.

Opinion filed December 30, 1916.

Statement of the Case.

Action by Max G-oldenberg, plaintiff, against E. A. Myers, defendant, on a written guaranty for the payment of rent under a lease. From a judgment for plaintiff, defendant appeals.

Calhoun, Lyford & Sheean and Mountz & Brinkerhoff, for appellant.

Eben F. Bunyan, for appellee.

* See Illinois Notes Digest, Volt. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Guaranty, § 35 ^* —who has burden of proving notice to guarantor of nonpayment of rent. In an action for rent due under a lease against one who, hy indorsement on the lease, had guarantied payment upon condition that notice of nonpayment by the lessee should be given him within ten days after nonpayment, held that the receipt of such notice by the defendant was a condition precedent to recovery, and that the burden of proof that it was so received by him was on the plaintiff.

2. Guaranty, § 325*—when proof of notice to guarantor of rent insufficient. In an action against one who had guarantied payment under a lease, provided that notice of failure of the lessee to pay be given the guarantor within ten days after such failure, held that mere proof of mailing such notice within ten days without proof that the defendant had received it within that period was insufficient to sustain a judgment for the plaintiff.