dissenting:
I dissent from the majority opinion and believe that the judgment of the trial court should be affirmed. As the majority recites, a contract of guaranty can be conditional. (Belleville Savings Bank v. Borman (1888), 124 Ill. 200, 16 N.E. 210.) In order for the guaranty to be conditional all that is required is that the guarantor’s signature be executed intending the condition and that the bank or obligee have actual notice, prior to any action on its part, of the condition. All of these requirements were met in the instant case. Relying on Hardware Wholesalers, Inc. v. Heath (5th Dist. 1973), 10 Ill. App. 3d 337, 293 N.E.2d 721, it is obvious that parol evidence may be resorted to in this cause to determine the intention of the parties and thereby construe the meaning of the guarantor language in the contract. The evidence is not disputed that the plaintiff bank required all 13 limited partners as guarantors to this loan transaction and so communicated this requirement to the partnership and all the partners.
It seems to me to be a meaningless task to require the guarantor to notify the plaintiff bank of the condition of the guaranty which was required by the plaintiff in the first place. It is undisputed that the bank intended, at least initially, for all 13 limited partners to be bound as guarantors of the loan and that plaintiff, therefore, had actual knowledge of this condition. The evidence in the record also readily supports a conclusion that the 12 defendants who signed as guarantors intended the condition to be operative when they executed the agreement.
The majority opinion would allow the plaintiff to unilaterally rescind the operation of the condition of all 13 limited partners signing as guarantors, and thereby unilaterally changed the obligations of the contract contrary to the intention of the parties at the inception of their contract. The evidence of the parties’ intention in entering into the contract is at odds with the result reached in the majority opinion and I, therefore, respectfully dissent.