delivered the opinion of the court.
In this State, presumptively, Campbell, Tibbits and Tinker were guarantors of the several notés made by Stevens, upon the back of which their names, respectively, appear. A third party placing his name upon the back of a promissory note is presumed to do so as a guarantor. Kingsland v. Koeppe, 137 Ill. 347; Hately v. Pike, 162 Ill. 241.
The note for $35,000, dated October 1, 1888, had upon the back thereof the following:
“ For value received, we' hereby guarantee the payment of the within note at maturity or at any time thereafter, with interest at the rate of eight per cent per annum, until paid, and agree to pay all costs and expenses paid or incurred in collecting the same.
Sidney A. Stevens,
B. H. Campbell,
For value received we hereby guarantee the payment of the within note at maturity or at any time thereafter, with interest at the rate of eight per cent per annum until paid, and agree to pay all costs and expenses paid or incurred in collecting the same.
B. H. Campbell,
F. G. Tibbits,
R. H. Tinker,
Sidney A. Stevens.
April 2, ’89, received 1225 for interest to April 1, 1889.
Oct. 16, ’89, interest paid to October 1, 1889.
Jan. 6, ’90, interest paid to Jany. 1, 1890.
Canceled.”
Tibbits testifies that there was no guaranty on this note when he placed his name thereon, and that he never consented to the guaranty being placed upon it. Tinker testifies the same as to his signing.
The note to take up the note of October 1, 1888, was dated January 1, 1890. It has been lost. September 1, 1890, Jamieson & Company, with whom it had been left for collection, wrote to Campbell, Tibbits and Tinker, saying that they had this note “ indorsed and guaranteed by B. H. Campbell, F. Gr. Tibbits and R. II. Tinker, and that they had been instructed to demand payment of you (respectively, Campbell, Tibbits and Tinker). It does not appear that either Tibbits or Tinker made a reply to Jamie-son & Company, Gatlin, or any one, in any way denying the making of such guaranty or the obligation of a guarantor.
Notified as they were by Jamieson & Company and by Stevens that they were guarantors, we can not regard their testimony given some ten years afterward as overcoming the presumption which, under the law, arose from their respective signatures.
Notwithstanding the presumption of guaranty arising from the respective indorsements, either of the guarantors was entitled to show that he was but an accommodation indorser and a surety, and that this was known to the payee. Tiedeman on Commercial Paper, Sec. 261.
So as to the last note upon which judgment was had, Campbell, Tibbits and Tinker were each entitled to show that he was but a surety, Ward v. Stout, 32 Ill. 399.
The question in this case is not, what were the relations and obligations of Gatlin, Stevens, Campbell, Tibbits and Tinker upon the former notes, but what was the contract entered into in the making of the note upon which judgment was entered.
If there had ever been any question, it has been established by the decision of the Supreme Court of this State that Stevens, Tibbits and Tinker were joint makers. Stevens v. Catlin, 152 Ill. 56.
The evidence that by agreement Tibbits and Tinker were, in respect to Campbell, sureties, and that a valid contract existed between him and them by which he undertook to hold them harmless, is not, in our opinion, sufficient to sustain the contention of appellants. Certainly Tibbit’s name was by him placed upon the note for $35,000, dated September 30, 1887, at the request and for the accommodation of Stevens only. Tibbits may, as he testifies, have indorsed this because Campbell’s indorsement was already there and he thpught him to be a rich man; but in no way did he do so for the accommodation or at the request of Campbell. Likewise, Tinker’s name was by him placed upon the note for $35,000, dated October 1, 1888, at the request and for the accommodation of Stevens only. Tibbits and Tinker testify that thus having become bound, Campbell afterward said to them, severally, that he would take care of other notes made in renewal of these notes. Campbell’s assurance, as stated by Tibbits and Tinker, was entirely indefinite as to time, and so far as appears not only without consideration, but also indefinite as to what he would do. It being sometimes thought it was his intention to take up the note himself and to take the securities himself and assurance that he would do “ it; ” at others that he had examined the collateral and believed it to be good for the amount of the note, and that as soon as he could arrange his transactions and money to do so, and he hoped before the note matured, he would take the note up and carry the collaterals himself and keep the collaterals as an investment; that just before the note upon which' all are makers was made, Campbell said to Tibbits, “ You need not worry about the note (then existing), I will take it up, but can’t do it now, and to assure you of my sincerity I will say now I will give Catlin $10,000 more security if he will give us six months more time.”
Campbell and Stevens are dead. Tibbits and Tinker testify to these conversations, from ten to twelve years after they occurred.
It is quite likely that Campbell did at times say that he thought the collateral good; that he contemplated taking the note up and keeping the collateral; that Tibbits and Tinker need not be uneasy, for the collateral was worth the amount of the note; and it is easy to understand how Tibbits and Tinker have come to honestly believe that he promised to hold them harmless.
Campbell is not here to testify; the written evidence, the writings of the time, do not sustain the recollections of the witnesses. On the contrary they tend to show that upon the previous notes Campbell, Tibbits and Tinker were guarantors. There is in the writings no hint of a claim that Campbell had undertaken to hold appellants harmless.
Neither before the death of Campbell, when payment from them was demanded by Jamieson & Company, nor after the death of Campbell, when Catlin wrote asking for immediate payment from them, saying that he did not want to be obliged'to tile a claim against the estate of Campbell, did Tibbits or Tinker urge that Campbell had assured them that he would protect them. The letter written by Tibbits April 22, 1891, nearly five months after the death of Campbell, contains no charge that Campbell had agreed to pay the note.
Appellee was not asked by appellants to prove the claim against the estate of Campbell. We do not mean to say that this was necessary if Campbell was a principal maker and appellants sureties for him; but as all appeared on the note as equally principals, if appellants knew that which they now claim, viz., that there was a parol agreement by Campbell to protect them, it is singular that they did not insist upon this to Catlin.
Campbell did, as he promised, put up $10,000 of additional collaterals; this was one of the conditions upon which the last renewal was taken by appellee, and Campbell, Tibbits and Tinker became joint makers of the last note.
This collateral and other, appear to have been sold and the note thus reduced, being October 1, 1890, $34,290.05, and bearing interest at seven per cent, so that it amounted, June 8, 1891, to $18,169.93.
There is not sufficient evidence that Catlin was, prior to the expiration of two years from the granting of letters testamentary upon the estate of Benjamin Campbell, notified that Campbell was, as to appellants, a principal maker, and they as to him, sureties only. Hr. Tibbits is evidently mistaken when he says that he told Catlin in Town’s office that Campbell had said he would take up the note and save him (Tibbits) from worry and responsibility. The conversation with Town at his office by appellants and Campbell, clearly indicates that Catlin was not there; Tinker says that he (Tinker), Stevens and Campbell were there; Sidney Stevens so writes to his brother “ Breese.”
Town was paid $200 for obtaining the last renewal. Campbell paid this and Tibbits sent to Stevens oné-third of this to be paid to Campbell. Why he did this, if Campbell was to pay the note and save him harmless, is unexplained.
The chancellor saw and heard the witnesses as they testitied; such being the case "the findings of the court upon questions of fact will not be set aside unless they are clearly and manifestly against the preponderance of the evidence; Lane v. Lesser, 135 Ill. 567, 573; Coari v. Olsen, 91 Ill. 273; Loucheim v. Seyfarth, 49 Ill. App. 561.
The decree of the' Circuit Court is affirmed.