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Guzell v. Kasztelanka Cafe & Restaurant

OPINION FILED AUGUST 7, 1980.

LEONARD GUZELL, PLAINTIFF-APPELLANT,

v.

KASZTELANKA CAFE AND RESTAURANT, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EUGENE R. WARD, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The plaintiff filed action against the defendants on a promissory note. The defendants defended on the ground of lack of consideration, and the trial court after hearing all the evidence so found. The plaintiff has appealed, contending:

(1) the evidence was insufficient to overcome the presumption of consideration;

(2) if in fact no consideration was given, the defendants are estopped to deny consideration since the note was used in obtaining a liquor license;

(3) the defendants are estopped to deny consideration because they returned the note to the plaintiff after using it to obtain the liquor license.

The plaintiff, Leonard Guzell, filed suit on June 23, 1976, on a note for $7,000 executed by the Kasztelanka Cafe and Restaurant, Inc., and guaranteed by John Zakrzewski and Irena Zakrzewski. The defendants admitted execution of the note but denied there was any consideration and further alleged they were fraudulently induced to sign the note.

Guzell testified as the sole witness for himself and was also called as a defense witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 60.) On direct examination, Guzell introduced the note and testified that it was signed in his office at 3114-16 North Milwaukee by Irena and John Zakrzewski on or about the date on the note (March 18, 1976) in Guzell's presence. After the note was signed it was handed to Guzell, and he gave Irena $7,000; the $7,000 was not a gift. In June of that year he demanded full payment of the note from Irena. She made no comment. Guzell speaks Polish as well as English.

On cross-examination, and when called as a defense witness under section 60, Guzell testified that the note was prepared on the date it bears (March 18, 1976) probably about an hour before it was signed. He said he had an independent recollection of the date the note was signed. However, he admitted that in his deposition he said he did not remember the date when the note was signed.

The note was prepared by Jonah Rosenberg, an attorney, in Guzell's office on Guzell's typewriter at Guzell's direction. Guzell had no conversation with him. Jonah knew what to put in the blanks because he had asked Guzell and had written it down. Guzell never discussed the loan with Jonah and had no discussion with him the day the note was signed.

Jonah was present in the office when John and Irena arrived but left before they signed the note. He was not present when they signed the note. Irena and John were probably in Guzell's inner office with him for a half hour before the note was signed.

Although there was no reason why the money could not have been transferred when the note was signed, it was not. After the signing, John left. Irena stayed for about 20 minutes. There was, however, no conversation. Then she left and later came back. Guzell was aware she was coming back.

The money was transferred to Irena about two hours after the note was signed. Only Guzell and Irena were present. It was transferred in cash, in denominations of 100's down to 5's. The cash had been accumulated and was kept in a floor safe in his office.

Guzell got the money he gave Irena from the safe. In his deposition he had stated that most of it had been in his pocket. He explained this answer by saying that after he got it out of the safe, he put it in his pocket. He never asked what the money would be used for. Irena said it would be used in the business.

After the note was signed, Guzell put it in his safe. He kept it there all the time until he ...


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