Sherburne v. J. W. Butler Paper Co., 40 Ill. App. 383 (1891)

April 8, 1891 · Illinois Appellate Court

40 Ill. App. 383

E. A. Sherburne v. J. W. Butler Paper Co.

Guaranty—Debt of Another—Payments.

In an action brought to recover upon a written guaranty of the payment of debts of another to a certain amount, this court holds that the instrument in question was a continuing guaranty applying to any bills within said amount, and declines to interfere with the judgment for the plaintiff.

[Opinion filed April 8, 1891.]

Appeal from the Circuit Court of Cook County; the lion. Julius S. Grinnell, Judge, presiding.

Mr. E. A. Sherburne, pro se.

Messrs. McClellan & Cummins and Lemuel H. Foster, for appellee.

Waterman, J.

The evidence in this case was that appellant gave to appellee the following guaranty:

Guaranty.

“ In consideration of one dollar ($1.00) to me in hand paid by the J. W. Butler Paper Company, of Chicago, Illinois, the receipt whereof is hereby acknowledged, and for other good and valuable considerations, I hereby guarantee to the said J. W. Butler Paper Company the payment, at maturity, of any bills of account due them for merchandise hereafter from time to time sold and delivered by them to the Eureka Roofing Company, of Chicago, whether sold on open account or on notes to the amount of $30, on twenty days time.

“And I hereby authorize the said J. W. Butler Paper Company to extend the time of payment in any manner that may be agreed upon between them and the said Eureka Roofing Company, without any notice to me, and no such extension of time of payment shall affect my liability on this guaranty.

“ This said guaranty to remain in full force and effect until revoked by me in writing.

“Witness my hand and seal at Chicago, this 9th day of December, A. D. 1884.

“ Signed: E. A. Sherburne, [seal.]

“ 115 Monroe St.”

That thereafter appellee delivered roofing felt to the Eureka Roofing Co., and charged to it upon its books such goods to the amount of $51.40.

Appellee also introduced, without objection, a letter, purporting to be signed by appellant, stating that he had a note from Mr. Fuller of the Roofing Co., “ to the effect that he had arranged that $27.65 of the J. W. Butler Paper Co.” The original entry book of the Paper Company showing the charges, was introduced without objection. The bill had been repeatedly presented to the Roofing Company.

The guaranty was a continuing one. It distinctly guarantees the payment, not of one bill or specified bills, but of any bills to the amount of $30. Brandt on Suretyship and Guaranty, Sec. 130; Lowe v. Beckwith, 14 B. Monroe (Ky.), 150; Murray v. Raynor, 22 Pick. 223.

The only evidence of the payment of anything by the Roofing Company was contained in the bill presented to it for payment

The finding and judgment for $27.50 of the court below was in accordance with the law and the evidence, and the judgment is affirmed.

Judgment affirmed.