McDonald v. Harris

Mr. Justice Seaes delivered the opinion of the Coubt. It is contended on behalf of appellant: 1st. That the verdict is against the weight of the evidence as to the date of the execution of the guaranty. r 2d. That the guaranty does not, upon a strict construction of its terms, undertake to guarantee payment of rent. 3d. That the court erred in giving certain instructions. 4th. That a new trial should have been granted on the ground of newly discovered evidence. There was a conflict in the evidence as to the time when the guaranty was executed. Appellant testifies that it was not executed until June or July, 1891. In this he is supported by the testimony of Hogan, Bremer and Blair. Appellee testifies that the guaranty was executed on February 17, 1891, the date of the making of the lease, and before its delivery. In this he is supported by the testimony of E. C. Feebler, A. C. Keeblér and Blaekall. The testimony of all the witnesses is not equally direct as to the fact in issue. On the one hand, Bremer says, u I have seen this (lease) or one like it, I don’t know which.” Blair does not say that he has seen the lease, but testifies to a conversation between appellant and appellee, which would be inconsistent with the contention of appellee that the guaranty was executed February 17, 1891. On the other hand, the two Keeblers and Black-all do not say that they saw the guaranty in February, 1891, but that they saw the lease with the guaranty thereon, with appellant's signature thereto, in April, 1891, which would be inconsistent with the contention of appellant that it was not executed until June or July, 1891. The question of fact presented upon this conflicting testimony, involving as it does, the credibility of the witnesses, is peculiarly within the province of the jury; and when determined by them, and their conclusion sanctioned bjf the trial judge, we can be justified in disturbing such determination only when it is clearly against the weight of the evidence, or when error has intervened. We can not say, after a careful examination of this record, that the verdict is clearly against the preponderance of the evidence. The guaranty is sufficient, in its terms, to constitute a guaranty of payment of rent. It was not framed by lawyers, but by business men. “ In guaranties, letters of credit and other obligations of sureties, the terms used and language employed are to have a reasonable interpretation, according to the intent of the parties, as disclosed by the instrument read in the light of the surrounding circumstances and the purposes for which it was made.” 1 Brandt on Suretyship and Guaranty, 133; Mason v. Pritchard, 12 East, 227; Mayer v. Isaac, 6 M. & W. 605; Hargreave v. Smee, 6 Bing. 244; Lee v. Dick, 10 Pet. 482; Lewis v. Dwight, 10 Conn. 95; Locke v. McVean, 33 Mich. 473; Crist v. Burlingame, 62 Barb. 351; First Nat. Bank v. Gerke, 68 Md. 449; Bailey v. Larchar, 5 R. I. 530; Hoey v. Jarman, 10 Vroom, 523. Upon examination of the lease it is seen that the only “ payment ” provided is of rent, taxes, assessments and water rates, and it is covenanted that these payments are to be made by the lessee. Evidently it was the intent of the guarantor to guarantee the payment of rent by lessee. It is complained that the trial court erred in giving the first and fourth instructions at request of appellee. The portions of the instructions complained of are as follows: 1st. “The jurors are instructed that if they find from the evidence that defendant, McDonald, signed the written guarantee upon said lease before the acceptance of the same by the plaintiff, then the said defendant can not successfully interpose the defense of a want of consideration for said contract of guarantee so signed by him.” 4th. “ The jurors are instructed that under the issues in this case the plaintiff, by the introduction of the lease in question and the written guarantee thereon, signed by the defendant, and by proof of the amount of rent due and unpaid, made out a prima, fade case.” It is urged that the first instruction states the law incorrectly as to the consideration. As applied to this case, this contention can not be maintained. If the guaranty was executed simultaneously with the lease, there can be no question raised under the facts of this case as to consideration. 9 Am. & Eng. Ency. 69; Klein v. Currier, 14 Ill. 237; Rich v. Hathaway, 18 Ill. 548. It is argued that the fourth instruction incorrectly states that it will be presumed that a guaranty without date was made at the date of the instrument upon which the guaranty is given. There was no error in this behalf, for such is the presumption in the absence of evidence to the contrary. Klein v. Currier, supra; Gridley v. Capen, 72 Ill. 11. The use of the words prima facie in this instruction did not make it objectionable. A similar instruction is a pproved in Great Western R. R. Co. v. McDonald, 18 III. 172. Finally, it is contended that the court erred in refusing a new trial upon the ground of newly discovered evidence. But to entitle a party to a new trial on the ground of newly discovered evidence, he must show that such evidence could not have been procured at the trial by the use of reasonable diligence. The fact that he did not believe evidence would be given upon an issue made, furnishes no excuse for not being prepared to meet it. Chapman v. Chapman, 129 Ill. 386; Dyk v. De Young, 133 Ill. 82. And the newly discovered evidence must be something more than merely cumulative evidence. Spahn v. The People, 137 Ill. 538. There is no sufficient showing here of diligence, nor' excuse for lack of it, in efforts to produce this same evidence upon the trial. And, if produced, it would not be conclusive, but merely corroborative of the testimony of appellant. We find no error in the record to warrant us in disturbing the judgment. The judgment is affirmed.