Boatmen's Bank of Mt. Vernon v. Dowell

567 N.E.2d 739, 208 Ill. App. 3d 994, 153 Ill. Dec. 781, 1991 Ill. App. LEXIS 280
CourtAppellate Court of Illinois
DecidedFebruary 25, 1991
Docket5-90-0005
StatusPublished
Cited by12 cases

This text of 567 N.E.2d 739 (Boatmen's Bank of Mt. Vernon v. Dowell) 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
Boatmen's Bank of Mt. Vernon v. Dowell, 567 N.E.2d 739, 208 Ill. App. 3d 994, 153 Ill. Dec. 781, 1991 Ill. App. LEXIS 280 (Ill. Ct. App. 1991).

Opinion

JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Betty J. Dowell, appeals from a judgment of the circuit court of Jefferson County in favor of plaintiff, Boatmen’s Bank of Mt. Vernon, in the amount of $115,403.90, of which $5,980.70 constituted an award for attorney fees. Judgment was entered after the trial court granted plaintiff’s motion for directed verdict and denied defendant’s motion for directed verdict. Defendant raises a number of issues concerning whether the trial court erred in directing a verdict for plaintiff. After careful consideration, we have determined the issues in this case to be: (1) whether the second guaranty signed by defendant on December 10, 1986, is a “new promise” within the meaning of section 13 — 206 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 206), thereby making the affirmative defense of the statute of limitations inapplicable; (2) if the second guaranty is a “new promise” under section 13 — 206, whether the second guaranty was supported by consideration; and (3) whether the trial court erred in awarding attorney fees. We affirm.

The facts in this case are relatively straightforward. Defendant’s husband, Nobel Y. Dowell, borrowed money from plaintiff on several occasions beginning in April 1976. Prior to loaning Mr. Dowell any money, plaintiff required defendant to guarantee the obligations of her husband. On April 12, 1976, defendant signed the following guaranty:

“GUARANTY
The undersigned hereby requests SECURITY BANK & TRUST CO., MT. VERNON, ILLINOIS (herein called the ‘Bank’) to give and continue to give Noble [sic] Y, Dowell (herein called the ‘Borrower’) credit, as the Borrower may desire and the Bank may grant, from time to time, whether to the Borrower alone or to the Borrower and others, and in consideration of any credit given, the undersigned hereby absolutely and unconditionally guarantees prompt payment when due and at all time thereafter of any and all existing and future indebtedness and liability of every kind, nature and character (including all renewals, extensions and modifications thereof) from the Borrower to the Bank, howsoever and whensoever created, or arising, or evidenced, or acquired; and the undersigned waives notice of the acceptance of this guaranty and of any and all such indebtedness and liability. The undersigned hereby waives presentment, protest, notice, demand or action on delinquency in respect of any such indebtedness or liability, including any right to require the Bank to sue or otherwise enforce payment thereof.
This guaranty is made and shall continue as to any and all such indebtedness and liability of the Borrower to the Bank, incurred or arising prior to receipt by the Bank of written notice of the termination hereof from the undersigned, without regard to collateral, or security, or guaranties, or other obligors, if any, or to the validity or effectiveness of any and all thereof; and any and all such collateral and security and guaranties and other obligors, if any, may, from time to time, without notice to or consent of the undersigned, be sold, released, surrendered, exchanged, settled, compromised, waived, subordinated or modified, with or without consideration, on such terms or conditions as may be acceptable to the Bank, without in any manner affecting or impairing the liability of the undersigned. It is agreed that the undersigned’s liability hereunder is several and is independent of any other guaranties at any time in effect with respect to all or any part of the Borrower’s indebtedness to the Bank, and that the undersigned’s liability hereunder may be enforced regardless of the existence of any such other guaranties.
This guaranty shall also bind the heirs, personal representatives, successors and assigns of the undersigned and shall inure to the Bank, its successors and assigns. Mt. Vernon, Illinois April 12 1976.
Is I Betty J. Dowell (Seal)
Betty J. Dowell”

Thereafter, on April 16, 1976, plaintiff loaned defendant the sum of $4,000. On August 2, 1985, plaintiff loaned Mr. Dowell $60,000 (hereinafter referred to as the $60,000 note). On June 9, 1986, plaintiff loaned Mr. Dowell an additional $45,432.43 (hereinafter referred to as the $45,000 note). The $45,000 note was due on December 9, 1986. A letter dated December 9, 1986, was sent to Mr. Dowell by plaintiff’s chairman and chief executive officer, which read:

“Dear Nobel:
Attached is the renewal on Note No. 58048 in the amount of $45,432.43 for six months.
We also need a new guaranty agreement signed by Betty. The one we have is over 10 years old.”

Another blanket guaranty, similar to the one originally signed by defendant on April 12, 1976, was signed by defendant and is dated December 10, 1986. It reads:

“GUARANTEE
In consideration of Boatmen’s Bank of Mt. Vernon (hereinafter ‘Bank’) making advances of money or otherwise giving credit to N. Y. Dowell, Sr. (hereinafter ‘Borrower’), the undersigned does hereby guarantee the full and prompt payment to said Bank of all indebtedness, obligations and liabilities of said Borrower to said Bank now existing or hereafter created or arising.
This is a continuing, absolute and unconditional guarantee and shall continue in force with respect to all indebtedness of the Borrower until terminated as to the undersigned upon receipt of written notice by the Bank from such undersigned to that effect or from the legal representative of the undersigned of the death of the undersigned, in which events it will not apply as to any advances made thereafter, but will remain in full force as to the indebtedness then existing.
This guarantee is absolute and is not affected by any failure of the Bank to give notice of default on the part of the Borrower, nor by extensions granted to said Borrower, nor by any acts or omissions whatsoever by the Bank relative to the indebtedness of the Borrower or any of the undersigned or any collateral that may be secured therefor. Notice of the acceptance of this guarantee by the Bank is hereby waived by the undersigned.
Upon any default in the payment of the indebtedness covered by this guarantee, or any part thereof when due, the Bank may, if it so desires, proceed directly against the undersigned without first taking any steps against the Borrower or any collateral that it may hold, and without any prior demand or notice. This guarantee continues in full force and effect until the full amount of the limit of liability hereunder has been paid by the undersigned.
This guarantee is to cover not only the principal and interest of the indebtedness of the Borrower, but all costs reasonably incurred in and about the same, including attorneys’ fees involved in making collection against the Borrower and against the undersigned under this agreement.

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Cite This Page — Counsel Stack

Bluebook (online)
567 N.E.2d 739, 208 Ill. App. 3d 994, 153 Ill. Dec. 781, 1991 Ill. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boatmens-bank-of-mt-vernon-v-dowell-illappct-1991.