and, as we have sufficiently indicated the ground of our concurrence in the decision upon points that are controlling, it is unnecessary to notice other and minor questions in the case. The judgment should therefore be affirmed, with costs. All

concur.

Judgment affirmed.

b. The obligation of a surety or guarantor is strictissimi juris and cannot be extended by implication. The obligor may rely on the strict letter of his contract.

SHREFFLER v. NADELHOFFER.

133 Ill. 536; 25 N. E. Rep. 630; 23 Am. St. Rep. 626.

Appeal from appellate court, second district.

BAILEY, J. Certain questions arising upon the pleadings are presented by counsel, which we will notice first. It is said that the defendants' eighth plea presented a complete defense to the action, and, as that plea was unanswered, judgment should have been rendered thereon for the defendants. It appears that the defendants went to trial without objection that said plea was unanswered, and without moving for any judgment thereon for want of a replication. They thereby waived the necessity of a formal issue. As we said in Strohm v. Hayes, 70 Ill. 41, it is the settled doctrine of this court that, proceeding to trial where an issue is not made up on one of the pleas, such issue is considered as waived, or the irregularity is cured by verdict. Furthermore, said eighth plea purports to answer only the third count of the declaration, and, as that count was dismissed by the plaintiff prior to the trial, such dismissal carried the eighth plea with it, and that plea was no longer in the case, and there was no occasion for answering it.

Again, it is insisted that each of the several counts in the declaration is insufficient to show a cause of action, and that the defendant's motion in arrest of judgment should therefore have been sustained. The alleged defect in the first, second, and fourth counts is that, except as to the first breach assigned in the first count, there is no averment that the decree recited in the appeal-bond has ever been affirmed by the appellate court.

It is difficult to see how, as the record now stands, the defendants can avail themselves of this defect in the second count, or in the second breach assigned in the first count. Said second breach in the first count and said second count were both demurred to by the defendants, and, their demurrer being overruled, they abandoned it, and filed various pleas in bar. The only assignment of error by which the alleged defect in the first and second counts are presented for consideration here is the one which calls in question the decision of the trial court overruling the defendants' motion in arrest of judgment, and the settled doctrine of this court is that where a defendant demurs to a declaration, and, after his demurrer is overruled, pleads over, he will be precluded from insisting upon a motion in arrest of judgment for insufficiency in the declaration. Quincy Coal Co. v. Hood, 77 Ill. 68; Express Co. v. Pinckney, 29 Ill. 392; Independent Order, etc., v. Paine, 122 Ill. 625, 14 N. E. Rep. 42; Rouse v. County of Peoria, 2 Gilman, 99; 2 Tidd, Pr. 918. But we think the fifth count, especially after verdict, is sufficient to sustain the judgment; and that being so, the court properly overruled the motion in arrest of judgment, even though all the other counts may have been defective. Section 57 of the practice act provides that "whenever an entire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts of the declaration be sufficient to sustain the verdict." Rev. St. 1889, c. 110, § 58. See, also, Gebbie v. Mooney, 121 Ill. 255, 12 N. E. Rep. 472, and authorities cited. The objection urged to the other counts does not exist in the fifth count, as that count contains a sufficient averment of the affirmance by the appellate court of the decree appealed from. But it is claimed that said count is defective in failing to state the names of the parties who had agreed to or were about to purchase said. note, and the sale to whom was defeated by the continuance of the injunction. The allegation of damages in said count is, in substance, that at the time the order continuing the injunction was made, the note, the sale and transfer of which was restrained, had a market value of $10,000, the makers and guarantors of said note then being men of great wealth and financial standing; that, but for the injunction, the note could have been negotiated and sold for that sum, and that the plaintiff was offered that sum for it by divers responsible parties, and would

have disposed of and sold it, without recourse, for that sum, if the injunction had not been continued in force; that by reason of the continuance of the injunction, the plaintiff was delayed and hindered in making such disposition of the note for the period of 10 months, and that during that period the makers and guarantors of the note became financially irresponsible, whereby the note became worthless. Without pausing to determine whether, in this case, the rules of good pleading required the plaintiff to state the names of the parties who had offered to purchase said note, or to whom he would have sold it if he had not been prevented from doing so by the continuance of the injunction, the case is one merely of a defective statement of a cause of action, and not one where no cause of action is stated, and the defect is therefore one which is cured by verdict. The rule on this subject, as laid down by Mr. Gould in his treatise on Pleading, is as follows: "Where the statement of the plaintiff's cause of action, and that only, is defective or inaccurate, the defect is cured by a general verdict in his favor; because, to entitle him to recover, all circumstances necessary, in form or substance, to complete a title so imperfectly stated must be proved at the trial, and it is therefore a fair presumption that they are proved. But where no cause of action is stated, the omission is not cured by verdict. For, as no right of recovery was necessary to be proved, or could have been legally proved under such a declaration, there can be no ground for presuming that it was proved at the trial." Gould, Pl. 463. The allegations of said fifth count were clearly sufficient to admit proof of the names of the parties with whom the plaintiff had negotiated the sale of said note, and to whom he was prevented from making such sale by the continuance of the injunction, and it will therefore be presumed, as was the fact, that such proof was made at the trial.

But the question to which our attention has been chiefly directed, and the one which presents the greatest difficulty, is whether any breach of the condition of the bond sued on is shown. The decision of that question must turn wholly upon the construction to be placed upon the language of the condition. That language is as follows: "Now, if the said Andrew Dillman and Edward R. Knowlton shall duly prosecute said appeal, and shall moreover pay all damages, and damages growing out of the continuance of the injunction herein, costs of suit rendered

and to be rendered against them, the said Andrew Dillman and Edward R. Knowlton, by said court in case the said decree shall be affirmed in said appellate court, then the obligation to be null and void; otherwise to remain in full force and virtue." The judgment of the appellate court simply affirmed the decree appealed from, and awarded the appellee, the plaintiff here, his costs in that court. No judgment for damages was rendered by the appellate court against Dillman and Knowlton, or the survivor of them, and no such judgment could have been rendered, as that court had no jurisdiction or authority, on affirming the decree, to make an award, to the party entitled thereto, of his damages growing out of the continuance of the injunction. It is not disputed that the costs adjudged to the appellee were paid prior to the commencement of the suit on the bond, and there was therefore no breach of the condition of the bond by reason of the non-payment of said costs. The defendants contend that, by a proper construction of said condition, the phrase, "rendered and to be rendered against them, the said Andrew Dillman and Edward R. Knowlton, by said court," should be held to apply to and qualify the words "all damages, and damages growing out of the continuance of the injunction herein," and therefore that no damages consequent upon the taking of the appeal, or growing out of the continuance of the injunction are within the condition, except such as the appellate court should award in its judgment. As the appellate court had no power to award damages growing out of the continuance of the injunction, this construction manifestly renders that part of the condition wholly meaningless and nugatory.

Two of the defendants being sureties, their liabilities must undoubtedly be determined in accordance with the rules of law applicable to that relation. It is a rule universally recognized by the courts, that a surety has a right to stand upon the strict terms of his obligations, when such terms are ascertained. As said by Mr. Justice STORY in Miller v. Stewart, 9 Wheat. 681: "Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of the contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change of the contract, or that it may even be for his benefit. He has a right

to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal. And courts of equity, as well as law, have been in the constant habit of scanning the contracts of sureties with considerable strictness." The rule thus laid down by Mr. Justice Story has been repeated and adopted by this court in numerous decisions. Field v. Rawlings, 1 Gilman, 581; Waters v. Simpson, 2 Gilman, 570; Reynolds v. Hall, 1 Scam. 35; People v. Moon, 3 Scam. 125; Governor v. Ridgeway, 12 Ill. 14; Ryan v. Trustees, 14 Ill. 20; Railroad Co. v. Higgins, 58 Ill. 128; Stull v. Hance, 62 Ill. 52; People v. Tompkins, 74 Ill. 482; Cooper v. People, 85 Ill. 417; Mix v. Singleton, 86 Ill. 194; Phillips v. Manufacturing Co., 88 Ill. 305; Dodgson v. Henderson, 113 Ill. 360; Trustees v. Sheik, 119 Ill. 579, 8 N. E. Rep. 189; Insurance Co. v. Johnson, 120 Ill. 622, 12 N. E. Rep. 205; Vinyard v. Barnes, 124 Ill. 346, 16 N. E. Rep. 254. In many of these cases we have said that the contract of a surety is to be strictly construed, and that his liability is not to be extended by implication, and such has long been the settled law in this state. It is not meant by this rule, however, that the courts, in endeavoring to ascertain the precise terms of the contract actually made by a surety, may not resort to the same aids, and invoke the same canons of interpretation, which apply in case of other contracts. Thus, in Stull v. Hance, 62 Ill. 52, the rule that in construing contracts and written agreements, the, whole context should be considered, and, the intention of the parties ascertained from it, was applied to the interpretation of the contract of a surety, and in Mix v. Singleton, 86 Ill. 194, where a similar contract was under consideration, the rule that the words used should be construed as ordinarily understood was applied. Indeed, any other mode of interpretation would lead to the absurd result of giving to the same set of words in a contract one force and meaning when the principal is defendant, and a different force and meaning when the suit happens to be brought against the surety or guarantor. The rule of strict construction, as applied to the contract of sureties and guarantors, in no way interferes with the use of the ordinary tests by which the actual meaning and intention of contracting parties are ordinarily determined, but merely limits their liability strictly to the terms. of their contract, when those terms are ascertained, and forbids any extension of such liability by implication beyond the strict