Automatic Electric Co. v. Campbell

Decided January 31, 1916

Appellate Court of Illinois · decided 1916-01-31

Abstract of the Decision. 1. Pleading, § 231*—what is right of party to amend pleadings. A party to an action is not as of right entitled to have leave to amend regardless of the character of the proposed amendment, but should prepare the proposed amendment and submit it to the inspection of the court. 2. Pleading, § 231*-—when not presumed that amendment of pleading will he proper. There is no presumption that a proposed amendment of a pleading will be proper, so that it is not error to refuse to allow an amendment not presented where there are no means of determining whether the proposed amendment is proper and sufficient. 3. Municipal Court of Chicago, § 13*—when affidavit of defense in action on contract of guaranty states no defense. In an action to recover on a contract of guaranty made in consideration that plaintiff forbear to bring suit on a cause of action named in the guaranty, where the declaration alleged that plaintiff forbore in accordance with the contract, it is not error to strike an affidavit of defense alleging that the time of making the contract there was no good and enforceable debt to be forborne and hence no valid consideration for the guaranty sued on, such affidavit stating no defense to the action. 4. Guaranty, § 7*—what is sufficient consideration to support contract of guaranty. A promise to forbear followed by an actual forbearance is a sufficient consideration to support a contract of guaranty. 5. Guaranty, § 7*—when guarantor estopped to deny consideration of guaranty or validity of original undertaking. In an action on a contract of guaranty the guarantor is estopped to deny the consideration of the guaranty or the validity of the original undertaking. 6. Guaranty, § 7*-—when consideration of guaranty may not he determined. In an action on a guaranty founded on a new consideration, independent of the consideration of the original undertaking, the consideration of the original undertaking cannot be inquired into as it forms no part of the consideration of the guaranty, but it is otherwise where the guaranty is made, at the same time as or before the original undertaking, since in such case the consideration of the original undertaking is also the consideration of the guaranty.

Cited by 1 later decisions — most recently March 1931

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1916-01-31

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Mr. Presiding Justice McSurely

¶1delivered the opinion of the court.

5. Guaranty, § 7*—when guarantor estopped to deny consideration of guaranty or validity of original undertaking. In an action on a contract of guaranty the guarantor is estopped to deny the consideration of the guaranty or the validity of the original undertaking.6. Guaranty, § 7*-—when consideration of guaranty may not he determined. In an action on a guaranty founded on a new consideration, independent of the consideration of the original undertaking, the consideration of the original undertaking cannot be inquired into as it forms no part of the consideration of the guaranty, but it is otherwise where the guaranty is made, at the same time as or before the original undertaking, since in such case the consideration of the original undertaking is also the consideration of the guaranty.