
    Martin Welke et al. v. The Pabst Brewing Co.
    1. Practice—Motions Taken Under Advisement.—Where a party litigant makes a motion in a case and the court makes no decision thereon, but takes the same under advisement and afterward decides the case against the mover of the motion, such decision operates as a denial of the motion.
    3. Indemnity Contracts—Bight of Sureties.—A surety has the right to insist upon the identical terms of his contract, and if he does not assent to a variation of it. and a variation is made, it will release him.
    Assumpsit, upon a contract of indemnity. Appeal from the Circuit Court of La Salle County; the Hon., Charles Blanchard, Judge, presiding.
    Heard in this court at the May term, 1897.
    Reversed and remanded.
    Opinion filed September 20, 1897.
    Henry M. Kelly and McDougall & Chapman, attorneys for appellants.
    The courts have repeatedly announced that contracts and obligations of sureties are always construed in favor of sureties. Burns v. Singer Mfg. Co., 87 Ind. 541; City of Lafayette v. James, 92 Ind. 240; Crego v. The People, 36 Ill.
    The contracts or obligations of a surety can not be extended beyond the clear and absolute terms of the undertaking; no presumption of equities are allowed to change or alter the legal obligation. Linch v. City of Litchfield, 16 Ill. App. 612; Reed v. Cramb, 22 Ill. App. 34; People v. Bartels, 38 Ill. App. 428; Reynolds v. Hall, 1 Scam. 35; People v. Moon, 3 Scam. 123; Stull et al. v. Hance, 62 Ill. 52; Dodgson v. Henderson, 113 Ill. 360; Burlington Ins. Co. v. Johnson, 120 Ill. 622; People v. Toomey, 122 Ill. 308; Vinyard v. Barnes, 124 Ill. 346; Shreffler v. Nadelhoffer, 133 Ill. 551; City of Sterling v. Wolf, 163 Ill. 467.
    A surety can only be charged when the case is brought within the very terms of the contract. Abbott v. Brown, 30 Ill. App. 376; Crego v. People, 36 Ill. App. 407; People v. Foster, 133 Ill. 504.
    The extent of a surety’s liability must be embraced in the obligation or contract. Chicago & A. R. R. Co. v. Higgins, 58 Ill. 128; Phillips v. Singer Mfg. Co., 88 Ill. 305.
    Sureties have a right to declare conditions. Hood v. Paddock-Hawley Iron Co., 53 Ill. App. 229.
    E.C. Swift and Snow & Hinebaugh, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the Court.

This suit was brought by the appellee against the appellants upon an indemnity contract executed by the latter to the appellee to secure the performance by one Eugene Hormandin of a certain contract for the sale of beer to him by appellee. The two contracts are as follows:

“ The Pabst Brewing Company, of Milwaukee, Wisconsin, a corporation, hereby agrees with Eugene Hormanclin, of Seneca, Ill., to sell him such beer of the quality usually manufactured by said corporation as he shall purchase under this agreement at the following prices, viz.:

Bottled beer casks containing 10 doz. pints, more than quarts.

These prices, including the freight on beer from Milwaukee, Wis., to Seneca, Ill., as well as on the empty packages returned from there to said city of Milwaukee, to be subject, however, to a proportionate change at the option of said Brewing Company in case cost of manufacture or of transportation shall be changed.

Said Eugene Hormandin agrees to pay said company for said beer the prices before mentioned, and to pay the railroad freight on all shimnents made to him under this agreement, which, upon the receipt of the original freight bill by the Pabst Brewing Company, shall be credited on its books to his account; and he also agrees to reship as soon as empty all kegs and packages in which said beer was received, the delivery to the company of shipping receipts therefor constituting such reshipment; and for empty bottles and cases reshipped as before stated to said Pabst Brewing Company it agrees to credit the account of said Eugene Hormandin as follows: 24 cents for each case (in good condition), 48 cents per dozen quart bottles and 36 cents per dozen pint bottles, actual count, at Milwaukee, provided said bottles are regular beer bottles, known as “ Export ” beer bottles. The said company agrees to allow a running credit on said sales to at least the amount of one thousand dollars on the purchases made under this contract; this amount to include $— now due and owing by said-to said Pabst Brewing Company which credit shall expire and the amount thereof become due and payable upon the termination of this agreement, or upon thirty days demand at any time. And for all beer said Eugene FTormandin may purchase in excess of the amount of said credit, he hereby agrees to pay for at the rates aforesaid at the time of sending in his order therefor. And in consideration of this agreement, said company agrees that during the performance of this contract it will not sell or consign beer of its manufacture to any other party within the town of Seneca, Ill., or its vicinity. And said Eugene FTormandin agrees that during the continuance of this agreement he will neither sell nor be interested in the sale of any beer not manufactured by the Pabst Brewing Company.

This agreement shall not be binding upon the said Pabst Brewing Company until the same has been signed by one of its officers and its corporate seal affixed at Milwaukee, Wisconsin.

This agreement may be terminated by either party upon ten days notice to the other in writing.

In witness whereof, the names of the parties to this contract are hereto subscribed, this — day of —-, A. D. 1S9-.

In presence of Pabst Brewing Company,

Fred Buenzel. By Frank FT. Feld, Treas.

H. I. Staur. Eugene FTormandin.

In consideration of the foregoing agreement, and in order to induce the Pabst Brewing Company to execute the same and thereby to secure to Eugene FTormandin the benefit and advantage thereof, we, Martin Welke, of Dayton, La Salle county, Illinois, and Byron D. Snell, living about twelve miles southwest of Ottawa, La Salle county, Illinois, for value received, hereby become surety for the said Eugene FTormandin, and do hereby jointly and severally guarantee the faithful performance of said contract, to the extent hereinafter set forth, and hereby bind ourselves, our heirs, executors and assigns, to indemnify and hold harmless the said Pabst Brewing Company for any loss or damage it shall sustain by reason of any failure by said Eugene Hormandin to perforin any of the agreements therein contained, to the amount and sum of one thousand dollars, if-being understood that our liability shall not exceed that sum, however great the default of said Eugene Normandin may be.

Dated this — day of-, A. D. 189-.

Byron D. Snell. (Seal.)

In presence of Martin Welke. (Seal.)

E. Hormandin.

The declaration, after setting out the contracts as above, avers that in pursuance of the contract with Hormandin,. appellee did, from time to time, furnish to him at the town of Seneca, large quantities or beer, of the value of two thousand dollars, which was wholly unpaid.

Issues being formed upon the declaration, a jury ivas waived and a trial had by the court, resulting in a finding and judgment against appellants for $669.71, to reverse which they appeal to this court, assigning for error that the court admitted improper evidence, refused to hold as law, in the decision of the case, certain propositions submitted to it by the appellants, and that the finding and judgment of the court is contrary to the law and the evidence.

Notwithstanding the declaration avers the shipments were made to Hormandin at Seneca, Illinois, the proof shows they were made at Morris, Carbon Hill and Braidwood, and there was no evidence that any of those places were in the vicinity of Seneca. Appellants moved to exclude the evidence of these shipments, which motion, the record shows, the court took under advisement with the case, and no express ruling thereon appears in the record; but the finding and judgment of the court being for the full amount proved, operated to deny the motion. On the trial appellants requested the court' to hold as law, in the decision of the case, that appellee was not entitled to recover for beer sold and shipped to Hormandin, except at Seneca, and that the other places named were not in the vicinity of Seneca, and also that appellee could not recover in the case for any beer sold to Hormandin, unless it was sold under the contract in evidence, which propositions the court refused, and appellants duly excepted.

These rulings of the court, upon the evidence and the propositions of law submitted to it, raise the question whether, under the averments of the declaration, the contracts in evidence and the oral testimony concerning the shipments, appellee was entitled to recover against the appellants. Appellee is in no position to complain, if the same construction shall, by the court, .be given to its contract with Hormandin, that by its declaration is attributed to it; which is, that it covered only sales for shipment to Seneca, Illinois. If the places to which shipments were in fact made, were claimed to be in the vicinity of Seneca, averment thereof should have been made. Ho such averment appears, and it is Avell known they are not in such vicinity. We think a fair construction of the contract limits the place of shipment for which appellants were to become liable, to Seneca or vicinity. Reading the contract within its four corners, we see no room for any other construction, especially in view of the'claim providing the prices shall include the freight from Milwaukee to Seneca, clearly thereby evincing the intention of the parties, at the time of making the contract, that the shipments were to be made to the latter place.

We are therefore of the opinion the court erred in not excluding the evidence included in the motion of appellants, and in refusing to hold as law the propositions submitted, and for these errors the judgment of the Circuit Court will, be reversed and the cause remanded.

Reversed and remanded.  