The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on plaintiff's motion for a
summary judgment. This is a contract action in which
plaintiff's complaint alleges that the defendant is liable to
Olin Corporation under a personal guaranty executed by John
Aspinwall for an amount of goods purchased by Harbach Farm
Supply, Inc. At the time of the purchase and execution of the
personal guaranty, Aspinwall was an officer and shareholder of
Harbach Farm Supply, Inc.
The fact that Aspinwall executed the guaranty in April of 1969
is uncontested. The guaranty*fn* was a typical agreement
used by dealers to insure payment when they extend credit to a
small or new company. Basically such an agreement provides that
the signor will be personally responsible for the amount of
credit extended or incurred in the event that the company
should go bankrupt. Usually such a personal guaranty is sought
from the principle shareholders of the company.
In April of 1969 Aspinwall was the Vice-President of the
corporation. His father-in-law, Lawrence Harbach, was the
President of the corporation and owned two-thirds of the stock.
Aspinwall owned the remaining one-third. He contends that he
signed the personal guaranty with the understanding that his
father-in-law would also make the same guaranty. However, Olin
Corporation only obtained the personal guaranty of Aspinwall.
Harbach Supply Inc. was adjudicated a bankrupt on March 29,
1973, in the United States District Court for the Northern
District of Illinois, case No. 73 B 205. Then plaintiff sought
to enforce the personal guaranty it had received from
Aspinwall. However, the defendant refused to pay the debt
incurred by the company. He claims that the personal guaranty
was invalid because he entered the contract of guaranty only
after being informed that Harbach's president, his
father-in-law, Lawrence Harbach, would also execute the same
agreement. He argues that Harbach's execution of the same
agreement was a condition precedent to liability under the
Plaintiff seeks a summary judgment on the issue of liability
claiming that there is no material question of law or fact and
since presentation of evidence concerning Harbach's execution
of the same guaranty contract would be barred by the rule
against parol evidence.
On the other hand the defendant submits that parol evidence is
admissible from the defendant on his contention that the
guaranty was supposed to be signed by Lawrence Harbach. Since
the parol evidence rule does not foreclose this particular
testimony there remains a question of fact to be decided by the
The Court is of the opinion that there is no material question
of fact or law since the rule against parol evidence would
prohibit the introduction of evidence as to Aspinwall's
understanding that Harbach would also execute the guaranty.
Defendant argues that where one guarantor's signature is
conditioned upon the signing by other parties as guarantors, he
is not bound unless the others sign. In support of his argument
he cites West Madison Bank v. Mudd, 250 Ill. App. 258 (1928).
However, the cited case is inappropriate to defendant's
argument In West Madison Bank, defendant, Joseph Mudd, signed
an instrument guaranteeing to pay all promissory notes signed
by both Ray Lancaster and Frank Mudd, if the Chicago Motor
Sales Company did not pay same. Plaintiff brought suit upon a
note which was not paid by Chicago Motor. This note was not
signed by both Joseph Mudd and Lancaster. The Court found the
defendant free of liability under the guaranty because the
promissory note was not signed in the manner mandated by the
guaranty. As stated by the Court:
"The indorsement of the note by Mudd and Lancaster was a
condition precedent to the fixing of any liability of the
guarantor, and . . . regardless of all the other questions
presented, the failure of the defendant to perform the
essential condition of the contract of guaranty raises an
absolute defense to the plaintiff's claim" 250 Ill.App. at 265.
This is not what is at controversy here. If the guaranty in
dispute here had expressly provided that Aspinwall's liability
on the guaranty was conditioned on the additional signature of
Lawrence Harbach, then there would be a material question as to
whether liability attached. However, the guaranty does not so
If this cause goes to trial, defendant will seek to introduce
testimony as to the alleged condition precedent which will be
at variance with the terms of a clear and unambiguous document.
In the deposition of defendant attached to plaintiff's motion
for summary judgment as Exhibit "C", he admits the genuineness
and execution of the guaranty. He also admits that he knew the
purpose of said guaranty. Defendant further admits that
plaintiff would not deliver any goods unless the guaranty was
Defendant cannot violate the parol evidence rule by altering
the terms of a document which is clear and unambiguous. Hart v.
Moran, 108 Ill. App.2d 139, 246 N.E.2d 820 (1st Dist. 1969);
Armstrong Paint v. Continental Can, 301 Ill. 102, 133 N.E. 711
(1922). Defendant must stand by the legal obligation which he
has voluntarily brought upon himself. In Castle v. Powell,
261 Ill. App.? 132 (1931), defendants sought ...