It is claimed by the defendant that, as there was no replication to the plea of the Statute of Frauds, that plea stands admitted. It appears that the defendant askedfor no rule on the plaintiff to reply, nor prayed judgment against him for want of a replication, and made no objection to going to trial as the pleadings were. It is the well settled rule that proceeding to trial with an issue on one of the pleas not made up, is a waiver of a formal issue, and that the irregularity is cured by verdict. Strohm v. Hayes, 79 Ill. 41, and cases cited.
The suit, is brought to recover upon an alleged contract of indemnity against the liability claimed to have been assumed by the plaintiff as surety or guarantor for one Dalton, upon a lease demising certain premises to him. If it be admitted that the alleged contract of indemnity is proved, it is manifest that) as the record is made up, there is no competent evidence before us that the plaintiff ever assumed any such liability. The plaintiff’s undertaking as surety or guarantor seems to have been written in some form on the lease, and that document was present at the trial and was offered in evidence, but, as it was not preserved in the bill of exceptions, we are obliged to treat the case the same as though it had not been produced at all. It follows that we have no evidence of its terms, or of the nature, character or extent of the liability assumed by the plaintiff. So far as appears, it may not have been a liability within the purview of the defendant’s contract of indemnity, or one calling for the payment of the money now sought to be recovered of the defendant.
But waiving this point, we are inclined to the opinion that the defendant’s contract upon which a recovery is sought, was a special promise to answer for the debt, default or miscarriage of another person, and so, within the provisions of the Statute of Frauds. It is true that the question whether a contract of indemnity against the liability of a surety or guarantor for a third person is within the Statute of Frauds, has been the subject of very great and perplexing discussions both in this country and in England, and very different conclusions have been reached by different courts, but the weight of the American decisions at least, seems to be in favor of applying the Statute of Frauds to contracts of this character. See 1 Reed on Statute of Frauds, Sec. 144, where this question is discussed at length and the authorities cited.
An exception is generally recognized, however, where the indemnitor is himself primarily liable for the debt guaranteed, because, in that case, he only promises to pay his own debt; and accordingly an effort was made in this case to show that Dalton, the lessee, was in'fact a mere agent of the defendant, and that the defendant was primarily liable for the rent guaranteed by the plaintiff. While there was some evidence tending to support that theory, we think the preponderance of the evidence was clearly the other way.
We are further of the opinion that the evidence was not admissible under the declaration. The rule is that if the promise is to be considered a collateral undertaking, then the declaration should be special; but if it may be regarded as an original undertaking, then the declaration may be general. Runde v. Runde, 59 Ill. 98; Northrop v. Jackson, 13 Wend. 85. As we have already seen, the promise in this case is collateral, and it should therefore have been declared upon specially. The declaration contains only the common counts. The bill of particulars is not a part of the declaration, and lends no aid to it in this respect.
For the reasons above given, the judgment will be reversed and the cause remanded.
Judgment reversed.