delivered the opinion of the court:
The contract provided that in order to authorize appellee to demand the $2000 he must, between ninety days after the date of the contract and November 1, 1906, serve a sixty day notice on Arthur N. Powers requesting him to take up the stock and pay the sum of $2000, and Arthur N. Powers agreed to accept said notice, and “within the sixty (60) days provided in said written notice” take up the stock and pay appellee $2000. The first amended count of the amended declaration set out that the contract required sixty days’ notice to be given but contained no reference to the notice being required to be given in writing. It averred that on October 19, 1905, appellee being in need of the $2000, and because of such need it was imperative that he sell and dispose of said stock, he served upon Arthur N. Powers a sixty day notice, “in accordance with the terms of said agreement, requesting him to take up the stock for exactly the sum paid therefor; that said Arthur N. Powers then and there accepted said notice by promising the plaintiff to take up the stock and re-pay to the plaintiff the $2000 within sixty days thereafter.” The first additional count contained averments similar in substance to the amended first count, and both counts alleged that upon the failure of Arthur N. Powers to pay the sum of $2000 appellee notified appellant that he had given the notice to Arthur N. Powers and requested him to pay said sum, but that he refused so to do. The amended first count of the amended declaration sets out what purports to be the substance and legal effect of the agreement, and the first additional count sets out the agreement in hcec verba.
By pleading to the declaration after the demurrer to it was overruled, appellant waived the demurrer and admitted the sufficiency of the declaration. Green Co. v. Blodgett, 159 Ill. 169; Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 id. 216; Gardner v. Haynie, 42 id. 291; Geary v. Bangs, 138 id. 77; Snyder v. Gaither, 3 Scam. 91; Camp v. Small, 44 Ill. 37.
Appellant contends that as guarantor he could only be bound by a strict compliance with the terms of the agreement, which required the notice to be given in writing, and he attempted, by pleas to which demurrers were sustained, to raise the question of law whether the notice was required to be given in writing. We do not think there was any error in sustaining demurrers to these pleas, as they presented issues of law, only. Had the general issue been pleaded this question would have been presented to the court for decision when the proof was offered. That plea would have put appellee upon proof of the allegations that the notice served on Arthur N. Powers was in accordance with the requirements of the agreement, and if the court had construed the agreement, when the proof was offered, to require notice in writing and the proof showed the notice given was not in writing, there would have been a failure of proof of material allegations.
Appellee testified that on the 4th day of January Arthur N. 'Powers paid him $1025 and promised to pay the balance before the February following. Failing to make the payments, appellee demanded the balance due of appellant, and he also promised to pay it, but failing to do so this suit was commenced. There was some other testimony admitted, over the objections of appellant, not necessary to the assessment of damages, but the appellant was not prejudiced thereby, as no' complaint is made of the amount of damages assessed, if there was any right to recover. The counts as to which appellant was defaulted allege that appellee had served a sixty days’ notice on Arthur N. Powers, in accordance with the terms of the agreement. The default admitted this allegation to be true, and only such evidence was competent as would enable the court to determine the amount of, and assess, the damages. Phœnix Ins. Co. v. Perkey, 92 Ill. 164; Binz v. Tyler, 79 id. 248; Cook v. Skelton, 20 id. 107; First Nat. Bank v. Miller, 235 id. 135; Cairo and St. Louis Railroad Co. v. Holbrook, 72 id. 419.
It is also contended by appellant that there was no proof that appellee was ready and willing to surrender his stock and that he needed the money so badly that it was imperative for him to sell. The first amended count of the amended declaration avers that appellee is, and always has been since giving the notice and making the demand, ready, able and willing, upon the payment to him of the $2000, to deliver up to Arthur N. Powers or the appellant the said shares of stock, and the first additional count avers that he is, and always has been, ready and willing to deliver up said stock upon the payment being made. One of the said counts alleges that when appellee gave the notice he did so because he needed the $2000 and because it was imperative that he sell the said stock. These allegations were admitted by the default and proof of them was not required.
We are of opinion the trial court did not err in rendering judgment in favor of appellee, and the judgment of the Appellate Court affirming that judgment is affirmed.
Judgment affirmed.