I cannot agree with the reasoning or result of the foregoing opinion. In my judgment the instrument of July 29, 1927, that was signed by Charles E. Dent did not satisfy the requirements of the consent signed by the three other defendants on the preceding day. The consent to the release of Elting after referring to the original contract of May 10, 1926, signed by the three defendants, was conditioned "upon the signing" by Dent "in his stead, and without prejudice as to our signature." The word "signing" evidently referred to the instrument of May 10, 1926, because it did not refer to any other instrument. Moreover, the words "without prejudice as to our signature" evidently contemplated that the signature of Dent should be affixed to the same document where the other signatures appeared, for otherwise there would have been no purpose in using these words. The instrument signed by Dent on the following day referred to the consent for the release of Elting "as surety," and apparently used the word "guarantee" in contrast to the word "surety." The obligation expressly assumed by Dent was "to guarantee the amount of your contract," referring to plaintiff's contract. In the instrument signed by him Dent did not waive any of the rights which had been expressly waived by the other defendants in the instrument signed by them, and it would therefore seem clear that he did not expressly make himself liable to the same extent and in the same manner as the other defendants. *Page 136 In my opinion he became liable only as a guarantor and not as a surety.
There is a substantial distinction between the liability of a surety and that of a guarantor. A surety's undertaking is an original one, by which he becomes primarily liable with the principal debtor, while a guarantor is not a party to the principal obligation and bears only a secondary liability. The surety's agreement is that he will do what his principal has agreed to do, whereas the undertaking of the guarantor is that the principal will do what he has agreed to do. The surety becomes primarily and directly liable on his contract from the beginning and is bound with the principal upon the same contract, while the guarantor ordinarily becomes liable for the performance of a prior or collateral contract upon which the principal, alone, is obligated. (12 Rawle C. L. p. 1057; 28 Corpus Juris, 890, 891.) This is an action at law and the provisions of the instrument relied upon must be strictly construed. A court of law has no right to presume that the contracting parties intended to insert in a written contract a provision other or different from that which the plain language used would indicate and then give a construction which would be legitimate if the contract contained the supposed omitted provision. Such a practice would, in effect, be making contracts for parties, which courts are powerless to do. (Fitzgerald v. Staples, 88 Ill. 234; Phillips v. Singer Manf.Co. 88 id. 305.) While it is a general rule that in construing a contract it is proper for the court to take into consideration the surrounding circumstances, this does not give the court the right, by construction, to establish a different contract from that expressed in the written agreement. (Green v. Ashland State Bank, 346 Ill. 174.) No words can be added to or taken from an instrument and thereby change the plain meaning of the parties as expressed therein. (Stevens v.Felman, 339 Ill. 391; LaRocque v. Martin, 344 id. 522;Foss v. State Bank and Trust Co. 343 id. 94.) *Page 137 Here the situation is that Dent agreed merely "to guarantee the amount of your contract," and did not make himself primarily liable with either the mausoleum company or the other three defendants who were sureties. Inasmuch as the consent of the three other defendants to the release of Elting was conditioned upon Dent undertaking to become liable as a surety with them, and since plaintiff released Elting without complying with the provisions of that consent, this amounted to a release of Bayne, Wetzel and Carson. It is well settled that at common law a release of one of several joint debtors, such as sureties, without the consent or authority of the others, has the effect of discharging all from liability. Benjamin v. McConnel, 4 Gilm. 536; Rice v. Webster, 18 Ill. 331; 21 Rawle C. L. 1050; 50 Corpus Juris, 186, 187; 28 id. 1008.
There is no allegation in the amended declaration that there was any consideration for the undertaking of Dent, who signed the instrument of July 29, 1927, before the alleged release of Elting. This instrument did not express any consideration for the undertaking of Dent, and his undertaking was not made conditional upon the release of Elting. Plaintiff at no time agreed to release Elting and at no time advised Dent that it had released Elting. The instrument signed by Dent was, at most, an offer to become a guarantor, and no notice was ever given by plaintiff to Dent that his offer had been accepted, hence the demurrer of Dent was properly sustained. Inasmuch as the instrument signed by him made him liable, if at all, as a guarantor, the cause of action against him would have been a separate one and independent of the cause of action against Bayne, Wetzel and Carson. The liability of the latter was a primary one, whereas the liability of a guarantor is a secondary one. A guarantor can no more be sued on his liability as such in a suit brought against him and his sureties than a guarantor can be joined with the principal debtor in the same suit. (Sleeper Co. v. Banquet *Page 138 Hall Co. 166 Ill. 57; 28 Corpus Juris, pp. 891, 1013.) For this reason, also, the trial court properly sustained the demurrer of Dent, and the judgment of the Appellate Court was therefore correct and should be affirmed.
Mr. JUSTICE HERRICK concurs in this dissenting opinion.
Mr. JUSTICE STONE, also dissenting.