APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
529 N.E.2d 30, 174 Ill. App. 3d 857, 124 Ill. Dec. 313 1988.IL.1455
Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. INGLIS, J., concurs. JUSTICE DUNN, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
Defendant, Clayton P. Boyd, appeals from an order of the circuit court of Du Page County which granted a motion for summary judgment in favor of plaintiff, Addison State Bank. On appeal, defendant contends that the trial court erred in granting plaintiff's motion for summary judgment because there remained an unresolved issue of fact with respect to whether defendant signed a guaranty agreement in an individual or representative capacity.
Plaintiff filed suit against defendants, National Maintenance Management, Inc. (National), Steven C. Boyd, and Clayton P. Boyd, alleging that National, through Steven and Clayton Boyd, executed a note and security agreement to plaintiff for which plaintiff lent National $35,000 for the purchase of a street sweeper. The complaint further alleged that both Boyds personally guaranteed the loan and that National was in default of the terms of the note. The signature portion of the note and security agreement listed National and was signed by "Clayton P. Boyd President" and "Steven C. Boyd." On the reverse side of the document was a guaranty agreement which provided as follows:
FOR VALUE RECEIVED, the guarantor, jointly and severally, guaranties absolute and unconditional prompt payment when due, whether at maturity, by acceleration or otherwise, of the liabilities defined in this note. The term 'guarantor' as used in this guaranty includes all of the guarantors of this note and, though used in the singular, will include all who sign this guaranty. After the occurrence of an event of default, each guarantor further agrees to pay all costs of collection, legal expenses and attorneys' fees, incurred or paid by the holder in the collection of any liabilities defined in this note and in the enforcement of this guaranty."
The guaranty agreement was signed "by Clayton P. Boyd Pres." and "by Steven C. Boyd."
During the course of the litigation, a settlement agreement was entered into between plaintiff and Steven Boyd. Thereafter, plaintiff filed a motion for summary judgment against Clayton Boyd on the guaranty agreement. Attached to the motion was the affidavit of Robert Slowinski, a vice-president of plaintiff, which states, in pertinent part, that National was in default on the note, that the collateral securing the loan had been sold, that $22,247.20 was due and owing, and that defendant had personally guaranteed the note.
Clayton Boyd answered the motion, arguing that he had no personal liability under the note and guaranty agreement. He further filed his own affidavit in which he stated, in pertinent part, that plaintiff had prepared the document, that an employee of plaintiff asked him to sign the front of the agreement, which he did by signing "Clayton P. Boyd, President," that the employee asked him to sign the reverse side, which he did by signing "by Clayton P. Boyd Pres.," that he signed both sides of the document for National in his capacity as president, not in an individual capacity, and that the employee of plaintiff looked at both sides after his signatures were placed thereon and did not ask him to sign again.
The circuit court granted summary judgment in favor of plaintiff for $22,247.20 plus attorney fees. Following the denial of his motion for ...