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Grundy County National Bank v. Westfall

AUGUST 24, 1973.

GRUNDY COUNTY NATIONAL BANK, PLAINTIFF-APPELLEE,

v.

BETH F. WESTFALL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Grundy County; the Hon. THOMAS C. CLYDESDALE, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 20, 1973.

This is an appeal from a judgment of the circuit court of Grundy County granting a motion of the Grundy County National Bank, plaintiff, for summary judgment in action on a guaranty agreement signed by Beth F. Westfall, the defendant, which was to guarantee the notes of her husband payable to the plaintiff.

As it appears from the record, prior to 1963 John Westfall and Beth, his wife, the defendant in this action, carried on a farm enterprise in Grundy County. The farm was leased from the defendant's mother who had a life estate therein, the remainder going to the defendant. Receipts from the farm were deposited in a joint account in plaintiff bank and prior to 1963 the defendant had made occasional withdrawals for farm purposes and had joined with her husband in borrowing money from the plaintiff. On October 21, 1963, at the request of her husband the plaintiff signed a loan guaranty agreement which was delivered by her husband to the plaintiff bank. Thereafter the plaintiff made loans to him represented by judgment notes in the amount of $46,226.51. It is undisputed that the defendant signed a printed form of loan guaranty agreement as well as it is undisputed that the blanks on the form were not filled in either at the time she signed it, delivered it to her husband or when it was received by the plaintiff bank. The unfilled blanks included the date, the name of the debtor, the name of the bank, and the limitation of the extent of liability assumed. The blanks were later filled in and the form completed by bank officials in October, 1967. We believe that it should be noted that the guaranty agreement signed by the defendant was in the nature of a cross agreement in that at the same time her husband John B. Westfall signed a similar agreement in which he guaranteed the defendant's credit to the extent of $50,000 and that this agreement form when signed contained this figure and all other blanks were filled with the requisite information.

The subject matter of this case has previously been before this court in Grundy County National Bank v. Westfall, 125 Ill. App.2d 254, 260 N.E.2d 745, from which decision an appeal was taken to our supreme court which ruled that the warrant to confess judgment was void for the reason "the extent of liability can be ascertained only by evidence dehors the instrument granting the power to confess judgment." (Grundy County National Bank v. Westfall, 49 Ill.2d 498, 275 N.E.2d 374.) The case was remanded to the trial court for further proceedings for judgment. As we have stated the plaintiff bank filed a motion for summary judgment supported by affidavits and attached exhibits. Evidence as to the extent of liability on the loan guaranty agreement was introduced, none of which was challenged by the defendant. The trial court entered a decree granting plaintiff's motion for summary judgment in the sum of $26,289.14 which included interest from June 28, 1972 together with costs of suit. The decree also denied the defendant's motion for summary judgment as well as a motion to strike a portion of the plaintiff's complaint. This appeal stems from the orders of the trial court contained in the decree.

We are first confronted with the issue as to whether there was any triable issue on the loan guaranty signed by the defendant on the basis of the evidence adduced as well as the admissions of the defendant.

The defendant in answering the amended complaint of the plaintiff admitted that on October 21, 1963 she executed a loan guaranty agreement, but that the name of the debtor on the agreement was blank, yet she knew it to be her husband, John B. Westfall. She also alleged that the name of the bank was left blank in the agreement but it was known to her that the bank involved was the plaintiff Grundy National Bank of Morris, Illinois. In regard to the blank space in the agreement relative to the amount of the guarantee the defendant admitted in her answer that she intended to guarantee the plaintiff only to the extent of $20,000, which sum has been repaid.

From these admissions it is obvious that the defendant admitted the guaranty agreement to be valid but that liability was limited to the sum of $20,000.

The trial court in considering the motions for summary judgment filed by the respective parties also had before it statements made by the defendant in a deposition. That portion of the deposition which is pertinent to the issue before us is as follows:

"Question: You say the words $50,000 were not there; do you recall that?

Answer: I recall there was no writing, nothing written in on pen and ink on that.

Question: Do you recall for what amount of credit it was for?

Answer: There was no mention of credit that it was to be for.

Question: Was there any designation with your husband that it was for ...


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