Appeal from the Superior Court of Cook County; the Hon.
HERBERT R. FRIEDLUND, Judge, presiding. Judgment reversed and
cause remanded with directions.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 23, 1964.
This is an appeal from a judgment of the Superior Court of Cook County entered on April 17, 1963, in favor of the plaintiff, Claude Southern Corporation, for $49,117, against defendant, Henry's Drive-In, Inc. The plaintiff has cross-appealed asking five (5) percent interest on the amounts due from the defendant. The action was brought by plaintiff to enforce a written guaranty after three of the defendant's Florida franchisees were unable to continue payment for plaintiff's signs. These three franchisees were Florida Drive-In Corp., No. 1; Stanley Glavin; and Vidal #1 Corporation.
Defendant charges several errors: (1) that the exhibits attached to the third amended complaint show on their face that the agreements entered into by the plaintiff are contrary to the written guaranties of the defendant; (2) the defendant was released on one guaranty because of the payment by a third party; (3) the plaintiff could not maintain the action because it had assigned "all right, title and interest" in the rental agreement; (4) the amount of the judgment is not supported by the record.
Claude Southern Corporation is in the business of manufacturing, erecting and maintaining electric advertising signs in the State of Florida. Henry's Drive-In, Inc. is a corporation located in Illinois whose business is franchising "Henry's Drive-In" restaurants. During 1957 defendant took steps to franchise dealers in Florida. It sold to Mr. Kotlisky and Mr. Daneman, Henry's Drive-In of Florida, Inc., the right to seek locations and franchise individual operations throughout the State of Florida.
The White Way Electric Sign & Maintenance Co. of Chicago was retained to draw up plans for standardized electric signs for all Henry's Drive-Ins. White Way recommended that the plaintiff manufacture and maintain the signs on Henry's Drive-Ins in Florida.
The plaintiff agreed to manufacture and maintain signs in Florida on condition that the parent company, the defendant, Henry's Drive-In, Inc., Chicago, would guaranty payment. The then president of defendant, Mr. Anderson, negotiated with plaintiff regarding the guaranties. The negotiations culminated with Henry's signing letters of guaranty covering each installation of signs manufactured by plaintiff. The letters were drafted by an official of plaintiff and then forwarded to defendant for signature. Each agreement provided in part:
"Selling price for each location is $315.00 per month, for a period of sixty (60) months.
In the event any one outlet should fail to make the monthly payments due to:
a) closing of the premises, or
b) failure to meet the monthly obligations
Henry's Drive-In, Inc. agrees to continue these payments.
Should it be necessary to remove Signs, and reerect them on another location, Henry's Drive-In, Inc., in Chicago agrees to assume the cost of this work. At no time will Claude Southern Corp. take a loss on the Signs, or will monthly payments be interrupted."
Following receipt of the guaranties, plaintiff would enter into a separate agreement with each Florida franchisee providing for installation and payment for the signs. Each of these agreements was characterized as a "standard electrical advertising rental agreement" and provided that the "term of this lease shall be for a period of 60 months, commencing upon the first day immediately following the installation of the sign and ending at ...