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Th Davidson and Company, Incorporated v. Eidola Concrete

July 2, 2012

TH DAVIDSON AND COMPANY, INCORPORATED,
PLAINTIFF-APPELLEE,
v.
EIDOLA CONCRETE, LLC, AND THOMAS E. KILBRIDE,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois Circuit No. 09-SC-2349 Honorable Kenneth Leshen, Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

JUSTICE CARTER delivered the judgment of the court, with opinion.

Presiding Justice Schmidt and Justice McDade concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, TH Davidson & Co., Inc. (Davidson), sued the defendants, Eidola Concrete, LLC (Eidola Concrete) and Thomas E. Kilbride, in small claims court to recover money allegedly owed on a line of credit. The circuit court found in favor of Davidson for $5,600.80. On appeal, the defendants argue that the court's decision was erroneous because Kilbride personally guaranteed only $1,000. We affirm.

¶ 2 FACTS

¶ 3 On September 4, 2007, Kilbride, then a co-manager of Eidola Concrete, filled out a "Credit Application/Sales Contract" whereby Davidson would agree to sell ready-mix concrete and other materials to Eidola Concrete on a line of credit. Eidola Concrete requested a $1,000 line of credit.

¶ 4 After Eidola Concrete failed to pay an amount owed to Davidson under the contract, Davidson sued Eidola Concrete and Kilbride in his personal capacity. At the September 21, 2010, bench trial, the parties stipulated that Eidola Concrete owed Davidson $5,600.80.

¶ 5 Testimony elicited at trial indicated that Eidola Concrete's credit application was reviewed by Davidson's chief financial officer (CFO), who approved the application but crossed out the $1,000 figure on the application and wrote $3,000 in its place. The CFO testified that it was customary for him to call a customer to let it know the decision on the application, but he could not recall a specific conversation with Kilbride in that regard.

¶ 6 Kilbride testified that he never consented to or signed the modified application. He also said he never talked to anyone about the credit limit being increased to $3,000. He did agree that he signed a personal guaranty on the "Terms and Conditions" page of the application, which stated:

"By signing below, the undersigned acknowledges that, as a principal of the Contractor, the undersigned will benefit financially by Davidson extending credit to the Contractor and that, in consideration of Davidson's extending credit to the Contractor under the terms hereof, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce Davidson to extend credit to the Contractor, the undersigned hereby agrees to guarantee the payment in full of any amount owing to Davidson by the Contractor at any time."

Kilbride stated that pursuant to the agreement, he was personally liable for only $1,000 of the $5,600.80 that Eidola Concrete owed to Davidson.

ΒΆ 7 At the close of the bench trial, the circuit court found that the personal guaranty was clear and unambiguous because it was not limited to a specific amount, but was for any amount owed. Accordingly, the court found in favor of ...

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