Mechanics' National Bank v. Frazer

Citations

• 86 Ill. 133

Syllabus

<p>1. Contract—whether entire or divisible. W here a debtor whose property had been seized under execution, for the purpose of releasing the levy and to procure an extension of the time of payment, agreed to give his creditor a note for a part of the debt, with a satisfactory guarantor; to pay down $1,000, and to give his individual note for the residue, payable in four months, and in pursuance thereof delivered his due-bill to the creditor for the $1,000, his note for $3,000, payable in one year, with a guaranty of a third person of its payment, and his individual note as agreed, and the creditor released his levy, but, the due-bill not being paid, and the property being seized under executions in favor of third persons, the creditor sued out another execution upon his own judgment, and caused the same to be levied on the same property, which, however, was all exhausted in payment of older liens, it was held, that the contract for extension was not entire in the sense that the creditor was bound to full performance before he could recover as against the guarantor.</p> <p>2. If the consideration and the agreement founded upon it both consist of several parts, and a part of the consideration fails, and the appropriate part of the agreement can be apportioned to it, then they may be treated as several contracts, and a recovery may be had as to the part performed, less the damages the other party has sustained.</p> <p>3. Failure or consideration—as to guaranty. In a suit against the guarantor of a note, it appeared the note in question, with others of the principal debtor-, was given in consideration that the payee should release certain levies under execution of the principal debtor’s property, and extend the time of payment of his indebtedness. The debtor was also to pay $1,000 down, but, instead of so doing, gave his due-bill for that sum. The creditor who was the payee of the note did release his levy and had his executions returned, whereby he lost his prior lien,