Yeazel v. Harber Bros.

Mr. Justice Harker delivered the opinion of the court. The only question for our decision is the sufficiency of the declaration upon a general demurrer. The first objection urged to the declaration is that it seeks a recovery upon two contracts of guaranty, set out in one count. If the objection were a valid one, it could not be raised by general demurrer. A pleading that is bad for duplicity will be held so only when the demurrer is special and points out wherein the duplicity consists. 1 Chitty on Pleading. 228; Armstrong v. Webster et al., 30 Ill. 333; Kipp v. Bell, 86 Ill. 577. It is insisted that the declaration is bad because there is no averment that Yeazel had notice that his guaranty had been accepted and that goods were being sold to Kellogg on the faith of it. ¡No such averment was necessary. The contract shows upon its face that it was being acted upon. Yeazel having executed and delivered it to the plaintiff, no duty rested upon the plaintiff of formally announcing to Yeazel that the contract had been accepted and that the plaintiff would sell goods to Kellogg on credit in faith of it. The contract of guaranty became absolute the moment it was delivered and he became bound by it the moment any goods were sold to Kellogg. It is next urged that the declaration is bad because 'there is no averment of a demand upon Kellogg at maturity of the several items of indebtedness mentioned and notice to Yeazel of non-payment. Where the contract of guaranty is an original undertaking, the guarantor is not entitled to notice of default in payment by the debtor whose obligation has been guaranteed. The principal debtor and guarantor are both bound to see that payment is made at the time specified and the party holding the guaranty is not bound to demand payment in order to hold the guarantor. Voltz v. Harris et al., 40 Ill. 155; Gage v. Lewis, 68 Ill. 618; Gage v. Mechanics’ National Bank, 79 Ill. 62. The contract specifically’ recites that Teazel agreed and obligated himself to become jointly and severally liable with- Kellogg to the Harber Brothers Company for the payment of any goods sold and delivered to Kellogg by it, and that he agreed to pay, “ in the first instance,” any indebtedness so arising, whether on note, bill or open account. The contract also waives any notice of sales to Kellogg, of the accruing indebtedness, or defaults in the payment thereof. The declaration contains the usual formal averments of failure to pay after request, etc., and that is sufficient. It is objected that the declaration contains no averment showing diligence upon the part of plaintiff to collect from Kellogg. For the reason .that Teazel’s liability as guarantor was primary, no such averment was necessary. We think the declaration was not obnoxious to general demurrer and therefore affirm the judgment. Mr. Presiding Justice Weight took no part.