APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order dismissing plaintiff's second amended complaint to enforce a guaranty contract for the payment of rent upon defendant's motion made pursuant to sections 45 and 48 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48.
The sole issue presented on appeal is whether the trial court properly dismissed plaintiff's second amended complaint.
On January 25, 1980, after filing a verified complaint and an amended verified complaint, both of which were dismissed on defendant's motion, plaintiff filed a second amended verified complaint.
The second amended complaint alleged in pertinent part that on June 21, 1976, Okon Industries (as lessee) entered into an equipment lease agreement with Executive Commercial Services, Ltd., (Executive) (as lessor) and that on or about that date defendant executed a guaranty contract, signed by defendant, which stated that the defendant
"* * * guarantees to the lessor and its assigns the prompt payment of all rent when due, whether by acceleration or otherwise, to be paid by the lessee and the performance by the lessee of all the terms, conditions, covenants and agreements of the lease."
The complaint further alleged that on or about September 30, 1976, plaintiff purchased that lease from Executive in reliance upon the defendant's guaranty, for value, in good faith and without notice of any claims or defenses existing on the part of any person, including defendant, and that Executive executed an assignment of that lease to plaintiff. Finally, the complaint alleged that Okon Industries, Inc., and defendant failed to make the payments due under the lease, that demand for such payments had been made upon them by plaintiff, and that there was due and owing to plaintiff the sum of $25,117.50. Attached to the complaint were "a true and correct" copy of the lease agreement (Exhibit A), a "true and correct" copy of the guaranty executed by defendant (Exhibit B), and an assignment of the lease from Executive to plaintiff (Exhibit C).
Defendant, stating that the second amended complaint was for all intents and purposes the same as the original, reasserted the dismissal grounds from counts II and III of his first motion to dismiss; that the guaranty required presentment, demand, protest and notice of protest which were not given to defendant, and that the language of the guaranty as evidenced in Exhibit B attached to the complaint was vague, uncertain, incomplete and hence legally unenforceable.
The court stated that there was a gap in the language of the second sentence of the guaranty which reads:
"In consideration of the making of the above Lease Agreement * * * the undersigned * * * guarantees to the lessor and its assigns the prompt payment of all rent when due, whether by acceleration or otherwise to be paid by the lessee * * *. The undersigned promises to pay all expenses including attorney's fees incurred in enforcing any obligation of the lessee under the lease or incurred presentment, demand, protest, notice of protect [sic] or of any obligations hereunder, grant the lessee any extension or indulgence under the lease, and may proceed directly against the undersigned without first proceeding against lessee or liquidating or otherwise disposing of any security afforded under the lease." (Emphasis added.)
Plaintiff admitted that there was an omission of language after the second "incurred" in the second sentence but contended that the omission was not material in that the enforceability of the guaranty could be construed from the first sentence of the guaranty.
The court, however, concluded that Exhibit B, the guaranty contract, was incomplete on its face; that no one could supply the missing language; that the exhibit controlled the pleading and accordingly the complaint failed to state a cause of action. The court dismissed the cause with prejudice and later denied plaintiff's motion for rehearing and reconsideration.
Plaintiff subsequently filed ...