¶1This was an action commenced by Ohlendorf against Windheim, then the payee and indorser in blank of a promissory note, of which Thomas Ryan and Dennis Ryan were the makers, and appealed to the Circuit Court.
¶2As the suit was brought before a justice of the peace, where pleadings are oral, we may consider that on the trial in the Circuit Court, the plaintiff had declared against the defendant as indorser and also as guarantor.
¶3After the trial had commenced in the Circuit Court and in the presence of the court and jury, these words were written above the name of Windheim:
¶4“ Value received, I assign and guarantee the within note to Conrad Ohlendorf.”
¶5The defendant then asked for and obtained leave to file an affidavit, denying the execution of this guaranty so then written, and we think the fair construction of the stipulation that the affidavit was thereafter to be written as of the present time, was that the question of the admissibility of the contract of guaranty should be decided in the same way it would have been if a sufficient affidavit, denying the execution, were then on file. In the affidavit which was filed the word “ indorsement ” means the guaranty indorsed during the trial on the note over the name, and not the signature or blank indorsement which was there before.
¶6The record shows, we think clearly, that there was an objection to the introduction in evidence of this contract of guaranty, and for the reason that it was thus written without authority over the name, and that the court overruled the objection and admitted it, and that exception was taken. It was conceded that Windheim wrote his name on the back of the note, and that the words of guaranty were written over the name on the trial.
¶7There was no evidence tending to show any other contract than the one the law implies, from the fact that the payee of a note has placed his name only on the back of it. There was no nol pros, as to the oral counts on the guaranty in the plaintiff’s oral declaration, nor any oral statement of plaintiff equivalent thereto.
¶8The law is well settled that there was no authority to write a contract of guaranty over the name, unless it was the mere reducing to writing of a previously existing contract of guaranty, and we think where it is conceded that words of guaranty are in the presence of the court and jury, or even if before the trial, written over a blank indorsement of the payee of a note, and where there is a declaration on the contract of guaranty, there should be some evidence tending to show the existence of an oral contract to that effect before the written contract, denied under oath, should be permitted to go to the jury. Boynton v. Pierce, et al. 79 Ill. 145. If there were written pleadings, and all the counts on the guaranty were nol frossed, so there was no such issue, which the jury had been sworn to try, it might do no harm, and whether pleadings are oral or written, can make no difference.
¶9In this case we think the court should have admitted the contract of assignment, and excluded the offered supposed contract of guaranty (as such contracts are separate and distinct, and unlike each other), in the absence of evidence tending to prove any contract of guaranty, and the court could easily, in its ruling, have separated the one from the other, notwithstanding the improper attempt of plaintiff to intermingle them.
¶10The jury having such written contract of guaranty with them in their room, admitted by the court without explanation against the objection of the defendant, might well consider it properly before them as evidence to be considered, and if so, entirely sufficient without troubling themselves about the more complicated questions growing out of the contract of assignment, and as they had sworn to try the issues they would feel compelled legally to do so, and decide the issue as to the guaranty for the plaintiff. bTor do we think it a sufficient answer to say that the court would, if asked by defendant, have instructed the jury that though both contracts were in evidence, they should treat one of them as not in. We cannot say what might have been done; all we can,say is that one of the contracts was improperly in evidence.
¶11There was, it is true, a trial as to the liability of defendant as endorser, but we cannot tell whether the jury found against him as endorser ór guarantor.
¶12As to the trial of the issue in relation to defendant’s liability as endorser, there was, we think, error. It was of course, necessary to prove due diligence by suit against the makers, or that such suit would have been unavailing, or some change of the conditional promise to an absolute one of defendant to pay plaintiff if the makers of the note did not, and that there was some consideration for such absolute promise.
¶13On that branch of the case, that a suit was unavailing because of the insolvency of the makers of the note, or that there was not due diligence by suit, it appeared that the makers and a brother were residing on a farm, claiming to own it, and thereiovejyrimafacie the owners thereof. City of Chicago v. O’Brennan, 65 Ill. 165. In order to show that there was nothing to be made out of this real estate, plaintiff was permitted against objection, to prove by witnesses that they had heard that the land was mortgaged, and also that it had been sold. As to diligence by suit, see Saunders v. O’Briant, 2 Scam. 369. The objection to this evidence was put upon the ground that such facts could not be proved by hearsay and mere rumor, but that the best evidence should be produced, viz.: the mortgages and deeds' or copies from the recorder’s office.
¶14We think the objection made should have been sustained, and that the court erred in allowing that kind of evidence. Roberts v. Haskell, 20 Ill. 59; Chalmers v. Moore, 22 Ill. 359; Clayes v. White, 83 Ill. 540.
¶15The refusal of the court to allow the defendant to testify after the argument had proceeded so far, was a reasonable and proper exercise of discretion. Counsel for defendant ought to know all that their client could testify to before entering on the trial. After the argument has commenced witnesses often leave the court room, and it would be improper, as a general rule, to allow a witness to be examined at that stage of the proceedings, when those who might contradict him had left; though it might in some cases be a proper exercise of discretion. There are other points made as to proving insolvency by general reputation, rumor, etc., and as to an instruction on the subject of a supposed promise by defendant to pay the note to plaintiff, if makers did not; but we have already said all that is necessary.
¶16For the errors aforesaid the judgment is reversed and the cause remanded.
¶17Reversed and remanded.