Reed & Mann v. T. B. Ellis & Bro.

Citations

• 68 Ill. 206

Syllabus

<p>1. Contract—construed, as to what was a performance. Where the plaintiff's in an action of assumpsit, claiming property, had brought an action of trespass against A in respect to the same, which the defendants had purchased of A, and the plaintiffs and defendants entered into a written agreement that the former would prosecute no suit against the latter on accoifnt of the property so purchased, but should prosecute the suit then pending against A, and if successfully prosecuted, the defendants guaranteed to plaintiffs $700, and the pending suit against A was dismissed for want of a declaration, but a recovery was had upon a second suit for the same cause of action: Held, that the defendants were liable upon their guaranty, as the true intent of the parties was that defendants should pay if the plaintiffs made their title good, without reference to the identical suit then pending.</p> <p>3. Evidence—parol testimony to identify subject matter of written corotract. Parol testimony is admissible to apply a written agreement to the subject matter to which it relates, as, to show that the property mentioned in a contract was the same as that for which a suit was prosecuted, when that is a material question.</p>