American National Bank v. Warner

468 N.E.2d 184, 127 Ill. App. 3d 203, 82 Ill. Dec. 122, 1984 Ill. App. LEXIS 2271
CourtAppellate Court of Illinois
DecidedAugust 21, 1984
Docket4-83-0673
StatusPublished
Cited by15 cases

This text of 468 N.E.2d 184 (American National Bank v. Warner) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American National Bank v. Warner, 468 N.E.2d 184, 127 Ill. App. 3d 203, 82 Ill. Dec. 122, 1984 Ill. App. LEXIS 2271 (Ill. Ct. App. 1984).

Opinion

JUSTICE TRAPP

delivered the opinion of the court:

The plaintiff, American National Bank of Champaign (Bank), appeals from a judgment holding that the defendant, Henry Warner, is not liable for the unpaid amount of a debt as to which he and Frank Pesek are co-obligors. The court held that (1) Warner is not a guarantor of any of the notes which evidence the debt; (2) the Bank’s continually asking Warner to sign renewal notes in effect estopped the Bank from asserting that language in preceding notes which Warner signed, consenting to all renewals and extensions thereof, was binding on Warner; and (3) that Warner did not agree to be bound by notes which Pesek alone signed at times subsequent to the joint execution of notes by Warner and Pesek. Although we agree that Warner is not a guarantor of any of the notes, we hold that language contained in the notes which both Warner and Pesek signed, by which they consented to all further renewals or extensions thereof, rendered Warner liable as to the amount remaining due on the debt evidenced by renewal notes which only Pesek signed, and that the Bank has not released Warner’s obligation to pay this amount.

In view of our decision, an extensive review of all the evidence presented at trial is unnecessary. On January 22, 1979, Warner and Pesek executed a $15,000, six-month, promissory note to American' National Bank, bearing 123/4% interest per annum. Among the terms of the note was a provision that “[e]ach of the undersigned consents to any and all renewals or extensions of this Note.” The note was secured by Warner Management Consultants stock, and the principal purpose of the transaction was to enable Pesek to purchase stock in that firm. Prior to the sale of the stock to Pesek, Henry Warner owned approximately 90% of Warner Management’s outstanding shares.

On July 26, 1979, the same parties signed a renewal of the above note in the amount of $14,000 on the same terms as previously. On February 4, 1980, a further renewal note was executed by Pesek and Warner in the amount of $13,107.78. This note contained the same terms as the prior notes, except that the interest rate was 151/2% per annum.

On November 26, 1980, Pesek alone signed an additional renewal note in the amount of $12,107.78. Except for an interest rate of 183/4% and some other relatively minor variations not relevant to the issues which this case presents, this note also contained terms similar to the prior notes. Despite his refusal to sign the renewal note just mentioned, Warner signed a purported guaranty of all of Pesek’s liabilities to the Bank “howsoever evidenced, whether now existing or hereafter created or arising” on December 12, 1980. This purported guaranty consisted of a printed form, and its language was circumscribed by the following hand-printed language appearing on the form: “This is limited to the original amount of $15,000 and will not exceed that amount which is currently being reduced.”

Following execution of the November 26, 1980, renewal note, there were apparently some renewals of that note which were evidenced by the Bank’s simply stamping a renewal form on the reverse thereof. During late 1980 and 1981, Pesek continued to repay the loan and by August 26, 1981, the principal had been reduced to $9,600. Subsequently, however, Pesek’s rate of repayment slackened and by March 23, 1982, the principal had increased to $10,700 as a result of the addition of accrued interest to the principal amount of the loan. On that date, Pesek alone executed another renewal note in the amount of $10,700, bearing interest at a floating rate of 1% over prime and payable in monthly installments of $314.32. Following Pesek’s failure to make regular payments on the last mentioned note and Warner’s failure to make the note good, the Bank filed suit against both Pesek and Warner. Pesek subsequently consented to the entry of a judgment against him in the amount of $11,946.62. He is not a party to this appeal. Following a bench trial, the court held that Warner is not liable for the amount of the $15,000 debt remaining due to the Bank. From this judgment the Bank appeals.

As a basis for affirming the trial court’s judgment, Warner asserts that the Bank intended to release him from all liability on the notes which he signed when it accepted the November 26, 1980, renewal note or when it accepted his guaranty, and that the guaranty is unsupported by consideration. At the outset, we note that Warner does not contend that he is anything other than a principal maker (as opposed to an accommodation maker) of the notes that he signed. These notes explicitly provide that the makers consent “to any and all renewals or extensions” thereof. In the absence of ambiguous contractual language, the intention of contracting parties as to the import of their contract must be ascertained solely from the contractual language itself. (J.L. Simmons Co. v. Lumbermens Mutual Insurance Co. (1967), 84 Ill. App. 2d 98, 228 N.E.2d 227.) The contractual language at issue binds the principal signers of the notes to all renewals and extensions of the notes in the clearest and most explicit terms. We must therefore give effect to the nonambiguous contractual language which the parties adopted and hold that Warner is, on the basis of the language pertaining to renewals and extensions in the notes that he and Pesek signed, liable for the amount of the original $15,000 debt remaining unpaid (see Lee v. Pioneer State Bank (1981), 97 Ill. App. 3d 97, 423 N.E.2d 218; Jacobson v. Devon Bank (1976), 39 Ill. App. 3d 1053, 351 N.E.2d 254), unless the Bank at some point released Warner from his liability for this debt.

In order to be accorded legal effect, a release of an obligation must be premised upon adequate consideration. (Toffenetti v. Mellor (1926), 323 Ill. 143, 153 N.E. 744.) A search of the record before us reveals that Warner provided the Bank with no consideration which would have supported a release of his liability on the basis of the notes either prior to or at the time of the Bank’s acceptance of the November 26, 1980, renewal note. Thus, the Bank’s subjective intent in accepting the renewal note of November 26, 1980, is irrelevant, since on the basis of the evidence there could not have been a release of Warner’s obligation prior to or at the time of the Bank’s acceptance of that note.

This brings us to the interrelated questions of whether Warner’s purported guaranty was supported by adequate consideration and whether the Bank’s acceptance of this alleged guaranty constituted a release of Warner’s liability on the notes. It is elemental that a guaranty agreement is of no legal effect unless supported by adequate consideration. (Blakely Printing Co. v. Barnard (1896), 63 Ill. App. 238.) Where a guaranty is executed contemporaneously with the note or obligation guaranteed, the consideration for the note or obligation furnishes consideration for the guaranty, but where the guaranty is executed after the guaranteed debt is incurred, new consideration is necessary to support the guaranty. (First National Bank v. Chapman (1977), 51 Ill. App. 3d 738, 366 N.E.2d 937

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Bluebook (online)
468 N.E.2d 184, 127 Ill. App. 3d 203, 82 Ill. Dec. 122, 1984 Ill. App. LEXIS 2271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-national-bank-v-warner-illappct-1984.