Appeal from the Circuit Court of Cook County; the Hon. Albert
Green, Judge, presiding.
JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:
The instant case addresses the propriety of the circuit court's decision to grant John and Dorothy Dickey, appellees, summary judgment on the question of whether they were personally liable on a note they signed as co-makers, which note was secured by a trust deed encumbering certain parcels of real estate. The note was held by appellant, Cosmopolitan National Bank of Chicago.
The properties which are the subject of the instant case are 905-13 East 61st Street and 6101-03 South Drexel, both of Chicago (hereinafter referred to as the properties), and both of which were initially owned by Nathan Weitzman, as the sole beneficiary of a land trust executed on January 11, 1974. Exchange National Bank of Chicago was the land trustee holding title to the properties; Exchange was succeeded in that capacity during the course of this litigation by La Salle National Bank.
On January 14, 1977, appellees entered into a contract with Weitzman, whereby they would purchase the properties from him for $80,000, with the sale to close on April 25, 1977. In the interval between the execution of the contract and the closing, Weitzman passed away. The closing proceeded, however, with Weitzman's estate transferring the properties and taking back a note for $55,000, which note, as has been already indicated, was secured by a trust deed on the properties. Exchange National Bank was the maker of that note, and appellees were denominated "co-makers" of the note. Weitzman's estate was later closed, and the note secured by the trust deed was distributed to Cosmopolitan, appellant herein, as marital trustee under Weitzman's will.
Appellees signed both the note and the trust deed as co-makers, that term having been inserted on the printed form in place of the term "guarantor." Both documents contained the following clause, also typewritten onto the printed form:
"The undersigned, as co-makers hereof, hereby agree to be bound by the terms and conditions herein set forth."
Elsewhere on the form, Exchange National Bank, as maker of the note, had explicitly limited its liability under the note as follows:
"[N]othing herein or in said note contained shall be construed as creating any liability on [Exchange] personally to pay the said note or any interest that may accrue thereon, or any indebtedness accruing hereunder, * * * the owner or owners of any indebtedness accruing hereunder shall look solely to the premises hereby conveyed for the payment thereof * * *."
The city of Chicago precipitated the instant proceedings when, on January 22, 1980, it filed a complaint alleging municipal code violations against the properties. Named as defendants in that action were, inter alia, appellees and Weitzman's estate. Appellant moved to dismiss Weitzman's estate and to substitute for it as marital trustee under the will, which motion was granted.
Appellant eventually filed a third-party complaint for foreclosure of the trust deed and for a finding of appellees' personal liability for any deficiency arising from the foreclosure. Appellees, in their answer, specifically denied the assumption of any personal liability on the note. Rather, appellees noted that Exchange National Bank, the land trustee and maker of the note, had clearly limited the extent of its liability to payments out of the properties only; as co-makers along with Exchange, appellees asserted a parallel limitation on their own liability.
Both parties filed what were, in substance though not technically in form, motions for summary judgment. After hearing arguments on April 8, 1985, the circuit court granted appellees' request for a finding that they were not personally liable on the note. In all other respects, the court granted appellant's motion for summary judgment. In reaching this decision, the court relied on the allegation that appellant drafted the instruments at issue and that any ambiguity would have to be resolved against them. The court found that the instruments were ambiguous as to personal liability, and ruled accordingly.
On August 2, 1985, the circuit court reaffirmed its decision when it denied appellant's motion for rehearing of its earlier ruling. Appellant thereafter perfected this appeal, challenging the propriety of the court's finding that appellees were not personally liable.
Three issues are raise on appeal, specifically: whether there were still genuine issues of material fact extant when the circuit court granted appellees summary judgment, such as to preclude the award of that remedy; if there were no such issues present, whether the circuit court erred in ruling in favor of appellees rather than appellant on the issue of personal liability; and finally, whether the court abused its discretion when it denied appellant's request for rehearing of the issue. All three questions are closely interwoven as all turn on the predominant issue: What did the contracting parties intend when they made appellees "co-makers" of the note? It is appellant's contention that the parties clearly manifested their intent to make the appellees personally liable for any deficiency arising on the note and trust deed. As indicated, appellees posit that as co-makers, their liability was co-extensive with that of the maker, Exchange; that is to say, appellees claim that their liability extends no further than the value of properties themselves.
The narrow question posed by this case is whether there were still issues of material fact unresolved when the court truncated the cause by granting summary judgment. We conclude that there were such questions present at ...