Appeal from the Circuit Court of Cook County; the Hon. MEYER
H. GOLDSTEIN, Judge, presiding. Reversed and remanded with
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified June 24, 1970.
This is a suit on a promissory note brought by plaintiff against the accommodation maker of the note, Kendall W. Young. At the close of all the evidence the court directed the jury to find in favor of plaintiff in the sum of $3,545.57 and judgment was entered thereon. Defendant appeals from the judgment and from an order denying his motions for judgment notwithstanding the verdict and for a new trial.
On October 7, 1960, Robert Leray, defendant's brother-in-law, desired to secure a loan from plaintiff. Leray was indebted to defendant in the sum of $50 and asked defendant to go to plaintiff's office, located in Salt Lake City, Utah, where he was arranging for the loan. Leray promised to pay defendant the $50 from the proceeds of the loan. Ray Phillips, president of Key Credit (plaintiff) presented to defendant a note and chattel mortgage for defendant's signature. Defendant told Phillips that he was in no position to sign as security for anybody. However, Phillips told defendant that if he would sign the documents they would only serve as credit references for Leray. Phillips assured defendant he would never have to pay the note as plaintiff held in its possession sufficient collateral of Leray's to cover the note. Relying upon these promises defendant signed the note and chattel mortgage. Leray also signed both documents. The note was for $6,262.40, payable in 36 monthly installments of $173.95 each, commencing November 7, 1960.
Defendant's evidence shows that the collateral held by plaintiff consisted of 4,000 imported French dolls each worth between $3 to $25 according to the size and costume of the particular doll. Defendant's evidence further shows that in a letter dated December 7, 1962, to Bruce Jenkins, an attorney for plaintiff, Phillips stated:
"During the past year, I have spoken to you about this account. In August, Mr. Le Ray came to Salt Lake City and picked [sic] most all of his collerateral [sic]. The collateral was approximately 4,000 dolls. He told me that he had a sale for some of them for $1,000.00. Upon receiving this he would apply this to his and Mr. Young's account.
"He has never done this and today a $74,00 check he made in October bounced for the fourth time. In trying to determine the status of this account I tried to call Mr. Le Ray. His phone is disconnected.
"In the past I have written him many letters and placed numerous telephone calls to him in Los Angeles. All my efforts have failed. Mr. Young, Mission President, Taiti Mission, should be returning to Utah November 1963.
"Their complete file is enclosed in this letter. If we do not hear from them by December 20th, we hereby request that you bring immediate legal proceeding against Mr. Le Ray in Los Angeles and place the church on notice of your pending suit against President Young."
In a note to defendant, a copy of which Phillips had sent with the December 7, 1962, letter, Phillips also writes:
"I am sorry that this mess has to be discussed again. This time the balance due is $3,400 and 7 months delinquent.
"Today a $100.00 check he gave in November was returned the 3rd time.
"His wife told me that he was in San Francisco last week. Now the ...