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James F. Goodwin, Inc. v. George W. Bowers Co.

FEBRUARY 1, 1960.

JAMES F. GOODWIN, INC., PLAINTIFF-APPELLEE,

v.

GEORGE W. BOWERS COMPANY, INC., DEFENDANT-APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. NORMAN N. EIGER, Judge, presiding. Judgment reversed and cause remanded.

PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

James F. Goodwin, Inc., brought this suit to recover unpaid rent from George W. Bowers Co., which was the guarantor of two defaulted leases. The defendant denies there was consideration for its guarantee, and appeals from a summary judgment entered in favor of the plaintiff.

In 1954 Goodwin leased two premises to Peter Epsteen Motors, Inc., for five years. On February 3, 1955, Epsteen assigned the leases to Lancer Motor Sales Co.; Lancer agreed to assume the obligations of Epsteen and Goodwin consented to the assignment. The Bowers company guaranteed the obligation of Lancer. In 1958 Lancer became bankrupt. Thereafter Goodwin demanded the rent from Bowers, but Bowers refused to pay.

The plaintiff's statement of claim said that the defendant, on the 3rd of February, guaranteed the obligations of Lancer in consideration of the plaintiff's consent to the assignment of the leases to Lancer. The defendant denied any consideration whatsoever for its guarantee. This was the sole issue created by the pleadings.

The plaintiff submitted two affidavits of its president, James F. Goodwin, in support of its motion for summary judgment; the defendant filed four affidavits of its president, George W. Bowers, in opposition to the motion. The affidavits were deficient in supplying details of the negotiations between the parties. However, some information, other than revealed in the pleadings, did emerge from them.

The second Goodwin affidavit made this further point: a corporate resolution was passed by the Bowers company on February 3, 1955, authorizing its officers to guarantee the lease; that this resolution supported the defendant's guarantee, and both induced the plaintiff's consent to the assignment of the lease to Lancer; and that it would not have consented except for the guarantee and the resolution.

The affidavits of Bowers made the following points:

(1) The lease was signed and delivered to Lancer by Goodwin on February 3, 1955, and the premises were turned over to Lancer in the evening of that day.

(2) Bowers' guarantee was not executed until February 4, 1955; it was done at the request of Goodwin, which request was not made until the assignment and consent were complete in all particulars.

(3) Goodwin had no knowledge of the corporate resolution until February 24, 1955.

An examination of the exhibits attached to the statement of claim sheds some more light on the transaction. From the exhibits these facts, favorable to Goodwin, appear:

(1) George W. Bowers was the president of both Lancer Motor Sales Co., and George W. Bowers Co., and as president of Lancer he signed its agreement to the assignment.

(2) The guarantee is on the same instrument as the assignment, the agreement of the assignee and the consent to the assignment.

(3) The guarantee stated — "By unanimous vote in joint shareholders and directors meeting, George W. Bowers Company, Inc., guarantees the obligation of Lancer Motor Sales Co." ...


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