учебный год 2023 / Child, Handbook of the law of suretyship and guaranty
.pdf100 |
THJD 8TATUTJD OB' B'RA.UDB. |
(Ch. 3 |
the promise was held not to be within the statute; |
for, unless |
|
the mine was worked successfully, the promisor would be able to obtain neither the ore nor the repayment of his lo:m, and the chief object of his promise was to prevent the stoppage of work.10
It is not requisite that the benefit be something of pecuniary value to the promisor. It is sufficient if the chief object of the promise is to accomplish a result which he desires. Thus an oral promise to make good any deficiency in an estate if the promisor be joined as administrator is enforcea?le.n
It must not be supposed, however, that in every case where it can be shown that the surety has received a benefit the statute of frauds does not apply. The statute applies if the chief object of the promise be to secure another's debt, although the surety may benefit by credit being extended to the principal. It is very common for a surety to receive compensation for the risk he undertakes, but this does not prevent the application of the statute. Again, a surety without compensation may benefit indirectly from the contract. Where the benefit to be derived is merely an inducement to enter into the contract, it is not sufficient. There must be a beneficial participation in the main contract. It is not sufficient that the creditor has relinquished an advantage in consequence of the promise, if the advantage so relinquished has not inured to the benefit of the promisor.12
eo DAVIS v. PATRICK, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826. A large stockholder ln a railway company was also a large creditor ot the corporation, and was to be paid out ot the proceeds ot the road. A contractor, who had benn employed by the company to build bridges along the line, not receiving payments as agreed, refused to go on with the work. The stockholder orally promised to beeome security, and It was held thnt his promise was enforceable, as his chief object was to promote his own Interests. There could be no proceeds, and hence no payment by m- tomtlinly to the stockholder as creditor, until the brldg(>l'l wt>re completl'd. Emerson v. Slatl'r, 22 How. (U. S.) 28, 16 L. Ed. 300; RAABE v. SQUIER, 148 N. Y. 81, 42 N. E. 516.
11 TO)fLI.l\SO.l\ v. GILJ,, Amb. 3.~0.
IIAMES v. FOSTER, 106 MasR. 400, 8 Am. Rep. 843; DEXTER
v.BLA.l\CHAHD. 11 Allen (\ln!<~.l 3G:i: Curtis v. Brown, 5 CuSb.
(Mass.) 488; MALLORY v. GILLETT, 21 N.Y. 412.
108 |
THE STATUTE OF FRAUDS. |
(Ch.3 |
technical or ambiguous terms," oral evidence may be introduced to show the meaning they have acquired by custom and usage, but not to show the sense in which the parties have used them.87
Consideration.
There has been considerable conflict upon the question whether the memorandum should express the consideration for the promise. This results from a doubt whether the word "agreement" in the statute is to be taken in its popular or in its technical sense. In the latter case a consideration is necessary,•• and must be shown.n
The courts which hold that a consideration must be expressed do not require that it be expressed precisely, but regard it sufficient if it appear by implication. If a guaranty be written upon the principal contract, it is presumed to have been made at the same time; 100 and, if the latter show a consideration,
u UNION BANK OF LOUISIANA v. COSTER, 8 N. Y. 203, 53 Am. Dec. 280.
n Wright v. Weeks, 25 N. Y. 153; Salmon Falls Mfg. Co. v. God· dard, 14 How. (U. S.) 446, 14 L. Ed. 493.
os See ante, I 49.
n Weldin v. Porter, 4 Houst. (Del.) 280; Hargroves v. Cooke, 15 Ga. 321; Emerson v. Aultman, 69 Md. 125, 14 At!. 071; Jones v. Palmer, 1 Doug. (Mich.) 379; Underwood v. Campbell, 14 N. H. 393; Laing v. Lee, 20 N.J. Lflw (Spencer) 337; Drake v. Seaman, 97 N. Y. 284; Parry v. Spikes, 49 Wis. 384, 5 N. W. 704, 3U Am. Rep. 782; WOOD v. BENSON, 2 Cromp. & J. 94. In the following states, the consideration need not be shown: Connecticut: Snge v. Wilcox, 6 Conn. 81. Maine: Gllllghnn v. Boardman, 29 life. 79. Missouri: Little v. Nnbb, 10 1\fo. 3. North Carolina: Ashford v. Robinson, 30 N. C. 114. Ohio: Reed v. Evans, 17 Ohio, 128. Vermont: Gregory v. Gleed, 33 Vt. 405. In some states the consideration need not be shown, because the stnt· ute enacted In those states uses the word "promise," Instead of "agreement," and a promise may be made without a consideration. Ellison v. Jackson, 12 Cal. 542: Dorman v. Bigelow, 1 Fla. 231; Ratlltr v. Trout, 6 J. J. Marsh. (Ky.) 605; Wren v. Pearce, 4 Smedes & M. (Miss.) 91; Campbell v. Findley, 3 Humph. (Tenn.) 330; Ellett v. Britton, 10 Tex. 208; Colgin v. Henley, 6 Leigh (Va.) 85. In Alabama the statute requires that the agreement express the consideration, while In Illinois and Indiana the statute waives that requirement. See, as to this suhjed, Ste:uns. Law or Suretyl"hlp. p. 30.
100 UNION BANK OF LOUISIANA v. COSTER, 3 N. Y. 203, 53
Am. Dec. 280.
120 |
CONSTRUCTION OF THE CONTIU.C'.r. |
(Ch.4 |
if he should die or resign before his term ended. The length of time for which they were to be liable might be shortened, but would not be lengthened.
Valid Rather Than lm/alid Meaning Given.
The policy of the courts is to apply such a construction as will render the contract valid, rather than otherwise, if it can do so without importing terms into the contract which do not appear. Thus, a guaranty of a note "when due" is not to be construed as impossible of fulfillment because the note was overdue at the time the guaranty was made; but, as the parties knew that the day of payment was past, the guaranty was equivalent to a guaranty of a note payable on demand, and such would be taken to be the intention of the guarantor.28
Where a bond is so worded as to render it nearly impossible to comply with the conditions, and hold a surety thereon liable, the court will apply such a construction as will prevent the bond from becoming practically invalid. Thus, a stipulation that an employer (the obligee) must give notice to the surety of any act of the employe (the principal) for whose fidelity the bond has been given, which "may" lead to default, will be construed to mean that the employer need not report mere suspicions, but he will be required to act in event only of acquiring knowledge of some act which might involve the surety in liability.
Courts, however, will not go to the extent of importing into the contract terms which have been omitted, or alter terms, although the result is to make the obligation void. A bond without a penalty,17 or without an obligee, will not be enforced. So, if an appeal bond recites an appellate court which has no existence, the court will not make any change. To do so would be for the court, and not the parties, to make the contract.18 Where an appeal bond described land which had no
u Crocker v. Gilbert, 9 Cush. (Mass.) 181: Gnnn v. Madigan, 28 Wis. 158. A guaranty that a note. payable In tbe future, ts due, and that the maker has nothing to file ngnlnst It, will be coustrued to have reference to the llabUity of the maker at maturity. Adams v. Clarke, 14 Vt. 9.
nAustin v. Richardson, 1 Grat. (Va.) 810. Tucker v. State, 11 Md. 822.
128 |
CONSTRUCTION OF TRill CONTRACT. |
(Ch. 4 |
Continuing and Noncontinuing Guaranties.
One of the most perplexing questions which the courts are called upon to decide is whether a guaranty is continuing or noncontinuing; and it seems to be impossible to formulate any rule or set of rules of construction which will aid in determining this question, but resort must be had to the general rules applicable to all contracts, and each particular case must depend upon its own facts. Precedents are of little use in cases of this kind, but the ambiguity must be cleared by ascertaining the intention of the parties, which must be sought, not only from the instrument itself, but from the situation and relation of the parties at the time of the execution of the contract, and their course of dealing."
ten, 20 Me. 28; Lewis v. Hoblltzell, 6 Gill & J. (Md.) 259; Hernandez v. Stillwell, 7 Daly (N. Y.) 360; Bank of Sandusky v. Follett, 2 West. Law J. (Ohio) 78; Johnston v. Mllls, 25 Tex. 704. So Is a ~ruaranty that a note Is "good." Cowles v. Pick, 55 Conn. 251, 10 Atl. 569, 3 Am. St. Rep. 44: Curtis v. Smallman, 14 Wend. (N. Y.) 231; Cooke v. Nathan, 16 Barb. (N. Y.) 342; Union Nat. Bank v. First Nat. Bank, 45 Ohio St. 236, 13 N. E. 884; Hammond v. Chamberlin, 26 Vt. 406. In the following cases, the expressions used were held to be guarantJes of collectlblllty: ''To be liable only In second lnstanct>." Pittman v. Chisolm, 43 Ga. 442. "To pay any deficiency." M<.'MURRAY v. NOYES, 72 N.Y. 523, 28 Am. Rep. 180. "In case he falls to recover." Jones v. Ashford, 79 N. C. 172. "If bearer falls to collect, to be re- sponsible." Evans v. Bell, 45 Tex. ~53. "If creditor wlll endeavor to collect." Phenix Ins. Co. v. Louisville Co. (C. C.) 8 Fed. 142. In Taylor v. Soper, 53 Mich. 96, 18 N. W. 570, and Kock v. Melhorn, 25 Pa. 89, 64 Am. Dec. 685, expressions to the etrect that a note was as "good" as money were held to be guaranties of payment; but a gual'- anty that the maker Is "good and solvent" Is one of collectlblllty Kinyon v. Brock, 72 N. C. 554. In Pennsylvania, guaranties of payment are regarded generally as guaranties of collectlblllty. See Tt• sue v. Hanna, 158 Pa. 384, 27 At!. 1104.
ae Whlte"s Bank of Butl'alo v. Myles, 73 N. Y. 335, 29 Am. Rep. 157. And see ante, note 16. In the following cases the guaranties were held to be continuing: Cahuzac v. Samlnl, 29 Ala. 288; Lewis v. Dwight, 10 Conn. 95; Trustees of PresbyteriAn Board of Publication
&Sabbath-School Work v. Gllllford, 139 Ind. 524, 38 N. E. 404; Clark:
v.Hyman, 55 Iowa, 14, 7 N. W. 386, 39 Am. Rep. 160; Lowe v. Beckwith, 53 Ky. (14 B. Mon.) 184, 58 .Am. Dec. 659; Grant v. Rldsdale, 2 Har. & J. (Md.) 186; Melendy v. Capen, 120 Mass. 222; Mathews v. Phelps, 61 Mich. 327, 28 N. W. 108, 1 Am. St. Rep. 581; Tootle v. Elgutter, 14 Neb. 158, 15 N. W. 228, 45 Am. Rep. 103; People v. Lee, 101 N. Y. 441, 10 N. E. 884; City Nat. Bank of Poughkeepsie v. Phelps, 86
§ 100) FORM 01' NOTICE WHEN REQUIRED, 135
pay the debt, and then, as will be seen in a subsequent chapter, he will have a right to proceed against the principal.11 If the liability of the principal and surety to the creditor be joint, but not several, the creditor should join them in one action; but, if their liability be joint and several, the creditor may proceed against the surety alone,• or, if there be two or more sureties, either of the sureties may be proceeded against,' leaving him to adjust his rights afterwards by contribution from his Co-Sureties.I
If the liability of the principal and surety is not joint, as in the case of a guarantor, the fact that the creditor has resorted in the first instance to the principal does not interfere
8. E. 701; Taylor v. Taylor, 64 Ind. 8.'56; German Sav. Bank v. Drake (Iowa) 79 N. W. 121; Louisiana 4: W. R. Co. v. Dillard, 51 La. Ann. 1484, 26 South. 451; Prentiss v. Garland, 64 Me-. 155; Roberts v. Hawkins, 70 Mich. 566, 38 N. W. 5i5; Inkster v. First Nat. Bank, 30 lllcb. 143; Osborne 4: C~. v. Gullikson, 64 Minn. 218, 66 N. W. 965; Flentbam v. Steward, 45 Neb. 640, 63 N. W. 924; Allen v. Bantel, 2 Tbomp. & C. (N. Y.) 342; Loos v. McCormaclt, 03 N. Y. Supp. 1088, 46 Misc. Rep. 144; Clay v. Edgerton, 19 Ohio St. 549, 2 Am. Rep. 422; Klein v. Kern, 94 Tenn. (10 Pickle) 34, 28 S. W. 295; llcCormick Harvesting Mach. Co. v. Millett (Tex. Clv. App.) 29 S. W. 80; Woodstock Bank v. Downer, 27 Vt. 539. The creditor Is not obliged first to present his claim against a deceased prln· elpal's estate. Chaffee v. Hooper, 54 Vt. 513. In Pennsylvania tbe creditor must proceed against the principal before resorting to a guarantor or payment, the same as against a guarantor or collection. Mcintosh-Huntington Co. v. Reed (C. C.) 89 Fed. 464. Bee post. § 126.
11 See post, § 154.
• Brooks v. Carter, 36 Ala. 6S2; Berg v. Radcliff, 6 Johns. Cb. (N.Y.) 302; Domestic Sewing Mach. Co. v. Saylor, 86 Pa. 287; Lown· des v. Pinckney, 2 Strob. Eq. (S. C.) 44.
'Wheeler v. Rohrer, 21 Ind. App. 477, 52 N. E. 780. If there nre two or more bonds, the obligee cnn resort to the Ruretles on either (Pinkstaff v. People, u9 Ill. 148: Smith v. Whitten, 117 N. C. 3.'3!l, 23 S. E. 320); and It the sureties on one bond limit the amount ot their respective llabtlltles, each can be held singly up to the amount for which be Is Individually liable. ELLIS v. EMANUEL, 1 Exch. 157..In Louisiana, under the Code, the creditor must reduce bls de· mand to the share or each surety. John M. Parker & Oo. v. Guillot, (La. 1907) 42 South. 782.
• Bee post, I 163.
146 |
CREDITOR AND SURETY. |
(Ch.5 |
the principal, had he been notified promptly; 111 but if the principal were solvent when the contract was made, and afterwards becomes insolvent, delay in giving notice may involve the guarantor in loss. The notice required need not be formal,00 nor need it be in writing, but may be inferred from circumstances; 11 or it may be waived, either expressly 12 or impliedly.••
8UB.E'I'Y'8RIGHTS l'fOTAFFECTED BY .JUDGliiEl'fT.
101. The rlchts - d llabWt!e• of a •uret7 IU'e :a.ot &fleeted b7 the reeovell')" of a judcm.e:a.t acal:a.•t him.
The rights and liabilities of a surety are not affected by a judgment obtained by the creditor against him for the debt."
Bainton, 2 Har. (Del.) 24; German Sav. Bank v. Drake Roofing Co., 112 Iowa, 184, 84 N. W. 960, 51 L. R. A. 758, 84 Am. St. Rep. 835; Beebe v. Dudley, 26 N. H. (6 Foster) 249, 59 Am. Dec. 341;
Sullivan v. Field, 118 N. |
C. 358, 24 S. E. 735; Bashford v. Shaw, |
4 Ohio St. 263; Janes v. |
Scott, 59 Pa. (9 P. F. Smith) 178, 98 Am. |
Dec. 328.
oe Walker v. Forl.Jes, 25 Ala. 139, 60 Am. Dec. 498; Taussig v. Reid, 145 Ill. 488, 32 N. E. 918, 36 Am. St. Rep. 504; BRACKETT v. RICH, 23 Minn. 485, 23 Am. Rep. 703; Dearborn v. Sawyer, 59 N. H. 95.
eo Notice Is not necessary It the guarantor knows ot the prln· clpnl's default. Benton v. Gibson, 1 Hlll Law (S. C.) 56.
u Montgomery v. Kellogg, 43 Miss. 486, 5 Am. Rep. 508; Oaks v. Weller, 16 Vt 70; Reynolds v. Douglass, 12 Pet. (U. S.) 497, 9 L. Ed. 1171.
n Bickford v. Gibbs, 8 Cnsh. (Mass.) 154. Where Indebtedness was guarantied ''unconditionally at all times," notice ot amount was waived expressly. DAVIS v. WELLS, 104 U. S. 164. 26 L. Ed. 686. oa If the guarantor acknowledge his llnblllty, notice Is not re·
qulred. Breed v. Hillhouse, 7 Conn. 52.'3.
u Carpenter v. Devon, 6 Ala. 718; Curan v. Colbert, 3 Ga. (3 Kelly) 2.'39, 46 Am. Dec. 427; Trotter v. Strong, 63 Ill. 272; Cham· bers v. Cochran, 18 Iowa, 159; Davis v. 'Mikell, 1 Freem. Ch. (Miss.) 548; Rice v. Morton 19 Mo. 263; Bangs v. Strong, 4 N. Y. (4 Comst.) 315; La Farge v. Herter, 11 Barb. (N. Y.) 159; Mortland v. Himes, 8 Pa. (8 Barr) 265; Commonwealth, to Use of Bellas, v. Vanderslice. 8 Serg. & R. (Pa.) 4ti2; Wren v. Peel, 64 Tex. 374; Dunham v. Down· er, 31 Vt. 248. The rule Is the same as to an Indorser. Hubbell v. Carpenter, 5 Barb. (N. Y.) 520.
156 |
CREDITOR AND SURETY, |
(Ch.5 |
A contract of suretyship is subject to the same general rules which govern the discharge of contracts in general; 1 u but it is the purpose here to treat of the rules which more pe- culiarly apply to this kind of contract. It must be borne in mind that the contract is subject to termination either before or after default, or it may be terminated after one default, but before another has taken place. A surety, in one sense, is liable when he executes the contract. In another sense, he is liable after the principal is in default. In the first case it would be proper to speak of the original contract being terminated, if it merely refers to the fact that the surety cannot be called upon to respond in damages on account of anything that might occur thereafter. If there has been a default, and the surety might be called upon to respond in damages, it might be more proper to speak of any action which relieved the surety from this liability as a discharge. But the original liability arising upon execution of the contract, and theliability which arises upon a breach of the contract, are so interwoven that it will not be possible to treat of the two separately. Some occurrence might terminate the contract as to the surety, so far as future acts were concerned, leaving him liable for defaults which had previously occurred; or he might be discharged as to both past and future defaults.
In addition to the difficulty which is common to all contracts, a contract of suretyship is complicated still further, so far as treating of the discharge of the surety is concerned, by the fact that the dealings between the creditor or obligee and the principal are a very important factor; and a surety may be discharged although the principal remains liable, or the surety may remain liable though the principal may be discharged, or they both may be discharged. Owing to these difficulties, a systematic arrangement of the different modes in which a surety may be discharged seems impossible, and the different defenses will be taken in order.
uo See, as to these rules, Clark, Cont. (2d Ed.) c. XL
172 |
CREDITOR AND SURETY. |
(Ch.5 |
suit from the fact that an extension of time is an alteration of "' a very material term in the contract, namely, the time of payment or performance.101 The contract, as extended, is a ~ new one, to which the surety is not a party, and the rule as laid down in the preceding section would apply; but there are additional reasons why an extension of time will discharge
a surety. The law gives a surety, who has been compelled to make payment on account of the default of the principal, the right to collect whatever he has paid from the principal,20 ' and the surety is not obliged to wait until requested to make payment, but may pay as soon as the debt is due, and proceed against the principal. If the creditor and principal make an
Diehl v. Davis (Kan. 1907) 88 Pac. 532; METZ v. TODD, 36 Mich. 473; Bank ot Albion v. Burns, 46 N. Y. 170; Ayres v. Wattson, 57 Pa. (7 P. F. Smith) 360. Or one who has pledged property. Home Nat. Bank ot Chicago v. Waterman, 30 Ill. App. 535, a11lrmed 134 Ill. 461, 29 N. E. 503; Price v. Dime Savings Bank, 124 Ill. 317, 15 N. E. 754, 7 Am. St. Rep. 367; Burnap v. National Bank, 96 N. Y. 125. It a buyer ot property has assumed a debt ot his seller, an ex· tension of the time of payment of the debt, given to the buyer, will discharge the seller. Calvo v. Davies, 73 N. Y. 211, 29 Am. St. Rep. 130, aftlrmlng 8 Hun (N. Y.) 222; Brill v. Holle, 53 Wis. 537, 11 N. W. 42. So an extension given to a partner who has assumed the indebtedness of the firm will discharge the others. Lelthnuser v. Baumeister, 47 Minn. 151, 40 N. W. HliO. 28 Am. St. Rep. 336; Mil· Ierd v. Thorn, 56 N. Y. 402; Dodd v. Dreyfus, 17 Hun (N. Y.) 000; Id., 57 How. Prac. (N. Y.) 319.
A guarantor will be discharged by an extension given to his prln· clpnl. Gross v. Parrott, 16 Cal. 143; White v. Ault, 19 Ga. 551: White v. Walker, 31 Ill. 422; Hurd v. Marple, 10 Ill. App. (10 Bradw.) 418; Springer Lithographing Co. v. Graves, ln' Iowa, 39, 66 N. W. 66; Dixon v. Spencer, 50 Md. 246; Bishop v. Eaton, 161 Mass. 496. 37 N. E. 6G5, 42 Am. St. Rep. 437; Challenge Corn Planter Co. v. Dlel, 92 Hun, 165, 36 N. Y. Supp. 364; Barnett v. Wing, 62 Hun, 125., 16 N.Y. Supp. 567; Rutherford v. BraC'bman, 40 Ohio St. 604; CnmJl' bl>l! v. Bnl;Pr, 46 Pa. (10 Wright) 243; Robln!!on v. Dale, 38 Wl!l. 3.'10; Hus~Pll v. Perkins, 1 Mason (U. S.) 368, Fed. Cns. No. 12.160: 2:i Cent. Dig. col. 152. So will an Indorser. In::re v. Bank of' :\lohlle. 8 Port. (Aln.) lOS; MC'Gulre v. Woolbrld~(\ 6 Rob. (Ln.) 47: Ven1.ie v. Carr, 3 Allen (.\fnss.) 14; Slebeneck v. Anchor, 111 Pa. 187, 2 Atl. 48fl; Bank of United States v. Hatch. 6 I'Pt. (U. S.) 250, 8 I.. E•l. 387. See post. c. Yll, note 143, that an extem~lon. granted by one co-surety to the principal, will take away tbe rlgbt to eontrlbutlnn.
101 See, note 139, supra. 1oe See post, 1 154.
208 |
CREDITOR AND SURETY. |
(Ch.5 |
|
Death |
of Guarantor. |
. |
|
A continuing guaranty being revocable so far as future transactions are concerned,au upon knowledge au of the death of the guarantor being acquired by the creditor, the latter cannot hold the estate of the deceased guarantor liable for any credit extended to the principal after the receipt of such information, aae unless the guarantor has bound his personal representatives expressly, in which case, in addition to notice of the guarantor's death, the personal representative should give express notice of an intention to revoke the guaranty.111
Changes in Joint Liability of Sureties.
Where a firm has become liable on a continuing guaranty, notice of the dissolution of the firm, given to the creditor, terminates the liability of the partners for any credit extended to the principal thereafter.aaa
au See ante, I 112, b.
aaa There Is lack of harmony In the decisions whether death alone will terminate the Ilablllty, or whether the creditor must have knowl· edge of the death. In the following cases the estate of the deceased guarantor was held liable for advances made after the death ot the guarantor, the creditor being In Ignorance thereof: Gay v. Ward, 67 Conn. 147, 34 Atl. 1025, 32 L. R. A. 818; Rapp's Estate v. Phrenlx Q)., 113 Ill. 390, 55 Am. Rep. 427; Menard v. Scudder, 7 La. Ann. 385, 56 Am. Dec. 610; BRADBURY v. MORGAN, 1 Hurl. & Colt. 249. Bnt in other jurisdictions It has been held that the guaranty Is revoked Instantly by the death of the guarantor, although the creditor has no notice thereof. Aitken v. Lang, 106 Ky. 652, 51 S. W. 154, 90 Am. St. Rep. 263; Hyland v. Habich, 150 Mass. 112, 22 N. E. 765, 6 L. R. A. 383, 15 Am. St. Rep. 174; Illinois Roofing & Supply Co. v. Gorton, 19 Pa. Co. Ct. R. 124, 6 Pa. D. C. 407; Michigan State Bank v. Leav· enwortb, 28 Vt. 210. And In such cases It makes no ditrerence that the guaranty was under seal, and contained a provision that it was to continue until notice of revocation, as such provision atrected the liability of the guarantor while living only. JORDAN v. DOBBI!\S, 122 .Mass. 168, 23 Am. Dec. 305.
sse Kernochan v. Murray, 111 N. Y. 306, 18 N. E. 868, 2 L. R. A. 183, 7 Am. St. Rep. 744; Slagle v. Amderson, 1 ~Ionag, (Pa.) 30; Slagle v. Forney, 22 Wkly. Notes Cas. (Pa.) 457; NATIONAL EAGLE BANK v. HUNT, 16 R. I. 148, 13 Atl. 115; COULHART v. CLElf· ENTSON, 5 Q. B. D. 42.
387 Knotts v. Butler, 10 Rich. Eq. 143; In re SILVESTER (18D5) 1 Ch. 573.
an City Nat. Bank v. Phelps, 16 Hun (23 N.Y. Super. Ct.) 158.
210 |
CREDITOR AND SURIIITY. |
(Ch.5 |
becomes a member,108 though the mere fact that the principal associates himself with a partner will not terminate the contract, if the creditor continues to deal with the principal as an individual, and not with the firm.111
BUBETY DIBOHABGED BY PEBI'OB!ii:AIOE OF
OOlf'l'RAOT.
128. A .uoet,- will 'be dbelaazosed bJ'pvfoli"Dl&Boe of :bJ.a ooa-
CIODt:l'aot.
PEBI'OBJIIAKOE PBEVEl'fTED BY AOT 01' OBEDITOB 01'
OBLIGEE.
123, A 1111ret,- will - t be Uable If nonperfoli"Dl&BOe :NsalU hom the 'Dlllawful act of the creditor or obllpe, or from a default of the prino!pal at the reqae•t of the endltozo ozo o'bllcee.
OOlf'l'RAOT HOT BETBOAOTIVE.
1H. A .uoet,- O&DDot be held Uable fozo &DJ'thiDcoocazorbac prlozo to the deUvei"J' of hia oontzoaot, 'GDlen the oontzoaot •o provide•.
OOliiPLIANOE WITH OOKDITIOHB.
1815. U the •azoetJ-'• oontzoaot be oondltlonal, the OODditiou mut be oompUed with before he O&D be held Hable.
GUAB.ANTIEB 01' OOLLEOTIOll.
128. A gaarantozo of oolleotlon will not be Uable - til the oredltozo hu ••ed dae dlligenoe Ill -deaTOZ'bac to --
tone pa)"DleDt from the prbao1pa1.
ue Connecticut Mut. |
Inl!. Co. |
v. Scott, 81 Ky. MO; Parham v. |
Brock, 113 Mass. 194; |
Coan v. |
Patridge (Sup.) 98 N. Y. Supp. 570. |
affirmed 101 N. Y. Supp. 1117; |
Dobbin v. Bradley, 17 Wend. (N. Y.) |
|
422; Dry v. Davy, 10 Ad. & El. 30.
an Gilbert v. Insurance Co., 8 Kan. App. 1, 44 Pac. 442; Palmer v. Bagg, 56 N. Y. 523.