had been executed has no effect upon Philips' liability under the Guaranty. Accordingly, Boulevard's extention of credit to High Tech was not a violation of the Guaranty, and the defendants' defense based on this ground therefore fails.
The defendants' final defense to the enforcement of the Guaranties is the argument that Boulevard improperly notified Philips of its demand for payment under the Guaranty. With regard to the manner in which demand was to be made, the second paragraph of the Guaranty states that Philips will make payments immediately upon Boulevard's "telex request." Additionally, the fourth paragraph of the Guaranty states that Philips will pay Boulevard "upon request of [Boulevard] the amount due," and the fifth paragraph states that Philips' obligations under the Guaranty "shall be due and payable to [Boulevard] upon its written or telex demand to [Philips]."
The defendants base their improper demand defense on the "telex request" language of the Guaranty's second paragraph.
Discounting the notice references in the fourth and fifth paragraphs as "other payment provisions," the defendants claim that the "telex request" was a condition precedent to payment under the Guaranty. Accordingly, since Philips never received any telex from Boulevard demanding payment, Philips obligation to pay was never triggered.
As with any contract, "obligations under a guarantee may be subject to conditions established by the parties." Irving Tanning Co. v. American Classic, Inc., 736 F. Supp. 161, 163 (N.D. Ill. 1990). Conditions precedent, however, are not favored by Illinois courts, and contracts will not be construed as having conditions precedent unless required to do so by plain, unambiguous language. A.A. Conte v. Campbell-Lowrie-Lautermilch, 132 Ill. App. 3d 325, 477 N.E.2d 30, 33, 87 Ill. Dec. 429 (1985); accord Shackleton v. Food Mach. & Chem. Corp., 166 F. Supp. 636, (D.C. Ill. 1958), aff'd in part, rev'd in part, 279 F.2d 919 (7th Cir. 1960); Department of Pub. Works and Bldgs. v. Porter, 327 Ill. 28, 158 N.E. 366 (1927); 12A ILL.L. & PRAC. Contracts § 227 (1983). Where the written terms of a contract are plain and unambiguous, the language of the instrument affords the sole criterion of the parties' intentions. Althoff Ind., Inc. v. Elgin Med. Ctr., Inc., 95 Ill. App. 3d 517, 520, 420 N.E.2d 800, 803, 51 Ill. Dec. 386 (1981). With regard to the "telex request" language of the Guaranty, there is no intrinsic ambiguity -- only the equivocal interpretation suggested by the defendants.
According to the defendants, the "telex request" language requires that the demand for payment under the Guaranty be made by telex and telex only.
However, despite the defendants' contentions, the common interpretation of this language is that Philips is required to fulfill its obligations under the Guaranty upon Boulevard's telex request for payment. There is no element of exclusivity embodied by this language, and in light of the Guaranty's reference to the generic term "request" and the phrase "written or telex demand," the argument that Philips was not required to comply with its obligations under the Guaranty unless it received a demand by telex, and by telex only, is absurd.
Although the defendants argue to the contrary, the contention that a telex request was the only method by which the Guaranty could be effectuated exalts form over substance. Where a party claims that an interpretation not evidenced by the plain meaning of the language used constitutes a condition precedent to its performance, that party is not entitled to a favorable construction unless it is established that the parties intended to create such a condition at the time of contracting. South Div. Credit Union v. Deluxe Motors, Inc., 42 Ill. App. 3d 219, 222, 355 N.E.2d 715, 718 (1976). The defendants have not supported their position with any evidence indicating that the parties intended a telex request to be the sole method by which a demand could be effective. Furthermore, read in its entirety, the Guaranty indicates that alternate forms of demand were acceptable. Boulevard transmitted a telefacsimile request for payment on May 22, 1991, and conveyed by Federal Express a written demand for payment on that same date. Accordingly, Boulevard demanded payment from Philips in accordance with the Guaranty, and the defendants' defense that an improper demand was made fails.
In spite of the defenses asserted by the defendants, the Guaranty and the Super Guaranty are clear and unambiguous promises to guaranty the monies that Boulevard lent to High Tech. Philips does not deny that it signed the Guaranty for the purpose of guarantying High Tech's debt. N.V.P. does not deny that it signed the Super Guaranty for the purpose of supporting the Guaranty with its joint and several assumption of Philips' liability. Each of the defendants benefited from the financing provided to High Tech by Boulevard, and for several years, each defendant acted as though a valid guaranty existed. It was not until Boulevard attempted to enforce the Guaranty that Philips began to scramble and manufacture the artificial defenses which it has presented to the court in an effort to avoid repaying the monies it not only guaranteed, but also received directly via the joint bank account maintained by Philips and High Tech.
The Guaranties are valid, and because the defendants have presented no legitimate defenses to the Guaranties' enforcement, the court grants Boulevard's motion for summary judgment against Philips and N.V.P., jointly and severally, for all amounts due under the Guaranty and the Super Guaranty, including the collection costs incurred by Boulevard in obtaining this judgment. According to Boulevard's statement of facts, submitted in accordance with Local Rule 12(m), Boulevard is entitled to the following damages: $ 985,998.79 in principal due under the Guaranty; $ 28,417.69 in interest due under the Guaranty as of November 25, 1992, plus interest which has accrued subsequent to that date; and collection costs which, through October 31, 1992, amount to $ 151,435.23. The defendants contest that the collection costs incurred by Boulevard are unreasonable; however, the defendants have not rebutted Boulevard's calculation with any factual support. Accordingly, pursuant to Local Rule 12(n), the facts stated in Boulevard's statement are deemed admitted. See Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101 (7th Cir. 1990) (summary judgment appropriate where respondent failed to provide supporting materials for its Local Rule 12(n) denial that the legal fees being sought were unreasonable)
For all the reasons set forth herein, the court grants Boulevard's motion for summary judgment in its entirety, and the Defendants' cross-motion for summary judgment is denied.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court