Saroni v. Chicago Bonding & Surety Co.

BARDIN, P. J.,

pro

tem.

This is an appeal from a judgment in favor of the plaintiff, taken on the judgment-roll alone. The action was instituted to recover the sum of five thousand dollars with interest, and attorneys’ fees, and was founded upon the alleged liability of the defendant upon a written instrument whereby the defendant, a corporation engaged in a general surety business, undertook to guarantee to plaintiff the payment of a loan in the sum of five thousand dollars made to Western Reclamation Company at

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the instance and request of the defendant. It was provided in the undertaking referred to that if the debtor defaulted in the discharge of its obligation, the defendant would itself make the required payment to the plaintiff together with interest thereon, costs, attorneys’ fees, and such damages as the creditor, Louis Saroni, might sustain.

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The first point urged is that the judgment does not find proper support in the findings.

By way of a separate defense to the action it was alleged by the defendant, in effect, that the Western Reclamation Company never at any time borrowed or received from the plaintiff the sum of five thousand dollars or any other sum, or promised to pay to plaintiff that sum or any other sum; and that the said sum of five thousand dollars was loáned by the plaintiff to certain individuals, naming them, for their sole and personal use and benefit, and that at the time said loan was made plaintiff received from the persons named their joint and several promissory note therefor.

Finding number X, in response to the particular issues created by the above averments, in part, is as follows: “The sum mentioned in the complaint, and the whole thereof, was not loaned by plaintiff to Louis Saunders, Frank V. Wright, and Just Anderson for their sole and personal use and benefit; and plaintiff, at the time of making said loan to said Western Reclamation Company, did receive a joint and several promissory note, signed by Louis Saunders, Frank V. Wright, and Just Anderson, in the sum of five thousand dollars ($5,000), and at the time that plaintiff so received the said note, it was to him stated by the defendant and by the signers of the said note, and plaintiff believed, and had reason to believe, that the said persons so signing the said note constituted the Western Reclamation Company.”