Hieston v. Natl. City Bk. of Chicago

Briscoe, J., delivered the opinion of the Court. This is a suit upon a contract of guaranty, dated the 5th day of January, 3914-, and executed in the City of Chicago, in the State of Illinois, by the defendant to the plaintiff. The appellant, the defendant below, is a married woman, temporarily residing in Baltimore City, in this State, but her husband is a citizen and a resident of the State of Illinois. Service of summons was obtained upon her in this State, where she had been residing on or about the period of three years, prior to the institution of the suit.

The appellee, the plaintiff below, is a non-resident corporation, duly incorporated under the laws, of the United States, and carrying on the banking business in the City of Chicago, in the State of Illinois. The contract of guaranty is attached to and made a part of the declaration, and is as follows: “Individual or Corporation: “I hereby request The National City Bank of Chicago to give and continue to Walter ilieston credit as he may desire from time to time, and in consideration of all and any such credit given him, I hereby guarantee prompt payment when due of any and all indebtedness now due or which may hereafter become due from him to said Bank, howsoever created, or arising, or evidenced, to the extent of five thousand ³⁹² dollars ($5,000), and waive notice of the acceptance of this guaranty, and of any and all indebtedness at any time covered by the same. This guaranty shall continue until written notice from me of the discontinuance thereof shall be received by said The National City Bank of Chicago. (Signed) Grace Hieston. “Chicago, Ill., Jan’y 5, 1914.” The declaration contains three counts in assumpsit and a fourth count declaring upon the guaranty.

This count avers, in substance, that Walter Hieston, the husband of the defendant, was indebted to the plaintiff in a large amount, exceeding five thousand dollars ($5,000), and the plaintiff was then about to enforce by suit its claims against him, and thereupon the defendant executed the guaranty set out and stated in the declaration.' It further avers that upon receipt of the guaranty the plaintiff notified the defendant by letter dated January 5, 1914, which letter was duly received by the defendant, that the plaintiff in consideration of the guaranty agreed that it would start no suit looking toward the recovery of a judgment on the indebtedness due by the husband to the plaintiff for a period of thirty days from the 5th day of January, 1914; that the husband had not paid the whole or any part of the debt due by him at the time of the execution of the guaranty, and that the debt, exclusive of interest, largely exceeds the sum of five thousand dollars. And that the plaintiff has notified the defendant of this fact and has demanded the payment by her, but she has failed and refused to pay the same in accordance with the guaranty. At the trial of the case in the Baltimore Oity Court the defendant reserved four bills of exceptions to the rulings of the Court upon the evidence and prayers. There were also other rulings of the Court upon the plead* ings and upon a motion to postpone or to discontinue the case, but as we find no reversible error in the last named ³⁹³ rulings we will first consider the controlling questions which are presented by the record in their regular order.

The first exception presents the ruling of the Court in refusing the defendant’s motion to postpone the case upon the ground that the plaintiff bank could not maintain this action because it had not filed with the Secretary of State, prior to the trial, the certificate required by Article 23, sections 93 and 94 of the Code. The answer to this contention is very obvious, and that is, the bringing of a suit by a national bank in our State courts can not be held to1 be “doing business herein” and that Article 23, sections 93 and 94, has no application to a case of this kind. There was no* error in overruling and refusing the defendant’s motion, set out in this exception. The second, third and fourth bills of exceptions contain the rulings upon evidence.

The second and third exceptions embrace the ruling of the Court in sustaining objections to the following questions asked the witness, Walter Hieston, in the course of the trial: (1) “Q. What was the immediate cause of your getting-indebted to the bank?” (2) “Q. What did you say to Mrs. Hieston in reference to her signing this (meaning the guaranty) ?” The debt due by the husband to the bank, it will be observed, was admitted and not in dispute. The cause of the indebtedness and the manner in which it was incurred were clearly irrelevant to the issues in the case. Statements made by the husband, who was not a party to the contract of guaranty, to the defendant, before she signed the guaranty, were inadmissible and propea-ly excluded by the Court. There was no error in the ruling set out in the fourth exception. -The question, “Was that the moving thing that led you to the signing of the agreement ?” propounded to the witness, the defendant in the case, was not only leading, but she had testified fully as to her reason for signing the guar ³⁹⁴ anty, and was permitted to repeat in her subsequent examination her motive and intent in executing' the guaranty, and she could not