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28 Ill. 262

Williams v. Corbet

Illinois Supreme Court

Decided April 15, 1862

Illinois Supreme Court · decided 1862-04-15

This was an action in assumpsit, commenced before a justice of the peace in Peoria county, and a judgment rendered for the defendant, from which judgment the plaintiff appealed to the County Court of Peoria county, where the cause was tried, and judgment rendered against the defendant below for the sum of fifty dollars and costs, from which judgment the defendant appeals to this court.

Key passage — most relied on by later courts

““A contract of indemnity is an original undertaking independent of any collateral contract. It creates a primary liability. The promise of the indemnitor is not to answer for the debt, default, or miscarriage of another, but may be to make good the loss resulting from such debt, default, or miscarriage. [Citing cases.] While the object of a guaranty and an indemnity agreement may be the same- — to save the promisee from loss — the legal effect is different. One guarantees the performance of an obligation ac - cording to its terms. A nonperformance of the obligation constitutes a breach of the guaranty agreement giving rise to the liability of the guarantor. The other indemnifies against loss in ease of nonperformance, the failure to perform does not create the liability, and there is no liability until the ascertainment of a loss therefrom. * * * “Although the ordinary surety or guarantor is a creditor of the principal debtor, the same cannot bo time of an indemnitor who does not undertake to assume or discharge the obligations of another, but has, on his own account, contracted to pay a sum of money upon the occurrence of a certain event, usually the happening or the ascertainment of a loss. There is no privity, either actual or implied, between the promisor in the undertaking the loss from the nonperformance of which is indemnified against and the indemnitor, and the latter, if the loss occurs, does not, by payment of it, discharge any one’s obligation but his own. “ ‘The i”

quoted by 2 later decisions, including United States v. Mitchell, 226 Ill. 2d 559 - Rosewood Care Center, Inc. v. Caterpillar, Inc.

Relies on Comstock v. Ward

Good law ✅— No negative treatment on recordhow we know

Decided 1862-04-15

How this case has been cited

Cited by 11 later decisions — most recently November 2007

1 federal appellate · 10 state decisions

30186218701880189019001910192019301940195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Beeese, J.

¶1¥e do not think the-evidence in this case makes out that Williams, the appellant, was the security of Caldwell, or that Caldwell was the purchaser of the cattle of appellee. He received them, it is true, and drove them away, but the appellant’s undertaking was an original undertaking to pay for them, not that he would see that Caldwell paid for them. It was only on thi§ promise and undertaking, appellee consented to let the cattle go. It is therefore not a collateral undertaking, but an original one.- Although the property passed from appellee to Caldwell, the consideration passed from appellant to appellee. That appellant was the person to whom the credit was given, is clear, and that fact makes the undertaking original and not collateral, and therefore not within the statute of frauds. The whole was one single bargain, and appellant’s promise was incorporated into the contract arid became an essential part of it. It is not at all like a case where the contract is executed, and the promise to pay made after the debt was created; such a promise in such a case must, to be binding, be in writing. That would be a promise “to answer for the debt, default or miscarriage of another,” and within the statute. So if the credit be not, at the time of the contract, given to the promisor.

¶2The facts in this case show that the appellant took Caldwell’s note for the price of the cattle got of appellee. He has been paid for them, and it is just and equitable he should pay appellee this price.

¶3Ho pleas in writing are had before a justice of the peace, and consequently it was not error to strike a written plea, filed in his court, from the files. In a justice’s court, all proceedings are ore terms, and the statute of frauds is presumed to be pleaded, if necessary to the defense. Comstock v. Ward, 22 Ill. 248.

¶4As we understand the ease, conversations were had between all the parties, about appellant becoming surety for the payment of the cattle, but they were propositions merely; the final contract was, that Caldwell should take the cattle—that he should give his note to appellant for their price, and appellant should pay appellee. This was the view the jury took of it, and although the testimony may be somewhat conflicting, it was their province to reconcile it. The weight of the evidence certainly is, that the appellee parted with his cattle, solely on the promise of appellant and on his credit. A suit by appellee against Caldwell, under such proof, must have been unsuccessful.

¶5We think the instructions given by the court were substantially correct.

¶6The judgment is affirmed.

¶7Judgment affirmed.

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