Ashford v. Robinson

• Decision Date: 31 December 1847
• Citation: 8 Ired. 114,30 N.C. 114
• Court: North Carolina Supreme Court
• Parties: THOMAS ASHFORD v. JOHN ROBINSON.

8 Ired. 114

30 N.C. 114

THOMAS ASHFORD

v.JOHN ROBINSON.

Supreme Court of North Carolina.

December Term, 1847.

In an action upon a guaranty in the following words: “This is to certify that I pass over the following notes to S. A. for value received, and I agree to make them good, should any of them not be so,” (naming the notes); Held, that this was a guaranty, not only that the notes were good at the time they were passed, but that they would be good, when payment should be required in a reasonable time.

Even if this were a contract within the statute of frauds, Rev. Stat. c. 50, s. 10, it would not be requisite, that the written contract should set forth the particular consideration; but to this contract the statute does not apply. It is a debt of the defendant himself, arising upon a new and original consideration of loss to the plaintiff and benefit to the defendant by means of the contract between these parties.

Notwithstanding gross negligence in the holder, the guaranty will be continued or revived by a new promise, made with a full knowledge of the facts.

The contract of guaranty is not like that of indorsement in the strictness of their conditions to be observed, or in the consequence of their non-observance. A guarantor is not discharged simply by the negligence of the other party, but he must also shew a loss by it: if a particular loss, he is exonerated pro tanto: if no loss, he remains liable for the whole debt.

The cases of Miller v. Irvine, 1 Dev. & Bat. 103, Cooper v. Chambers, 4 Dev. 261, Adcock v. Fleming, 2 Dev. & Bat. 223, and Smith v. Morgan, 3 Dev. 511, cited and approved.

Appeal from the Superior Court of Law of Sampson County, at the Spring Term 1847, his Honor Judge BATTLE presiding.

This is an action upon a guaranty of the note of David Underwood, which the defendant passed to the plaintiff's intestate in part payment for his crop of cotton, and was tried on the general issue. The guaranty, is in these words:

“CLINTON, May 1st, 1840.

This is to certify, that I pass over the following notes to Street Ashford for value received, and I agree to make them good, should any of them not be so. One note of J. S. Chesnut for $136 05. One note on, &c. The above notes are made payable to me.”

+---------------------------+
                ¦(Signed,)¦“JOHN ROBINSON.” ¦
                +---------------------------+
                

It appeared upon the trial, that Ashford issued a writ against Underwood, in the name of the defendant, on the note in question, on the 4th of February, 1841, returnable to the County Court, on the third Monday of that month, and that it was not executed in consequence of Underwood's having gone out of the county on business. The plaintiff gave evidence, that an alias was issued, and that the defendant was about serving it, and was prevented by the present defendant, who told him not to do so, as Underwood was insolvent, and he, Robinson, would have to pay the debt, and did not wish to be put to any further costs.

Afterwards the plaintiff brought another suit against Underwood, and got judgment in November 1841, but was unable to levy the money, as all Underwood's property was sold under executions on the 15th of April, 1841, and he was afterwards insolvent. The defendants afterwards mentioned to the sheriff, that he made himself liable for the debt through ignorance, and he sent word to the plaintiff, that he would still pay it, if the plaintiff would take a certain claim on another person. The plaintiff declined doing so, and demanded the money from Robinson, who refused to pay it; and this action was brought in February 1843.

The counsel for the defendant contended, that, as the guaranty did not express the consideration on which it was given, it was void under the statute of frauds. But the Court held otherwise. He further insisted, that the defendant had only bound himself for the solvency of Underwood, at the time the guaranty was given; and that, as he did not fail until nearly a year afterwards, this action would not lie. And also, that the defendant was, at all events, discharged for the want of due diligence of the plaintiff, and his intestate, in endeavoring to collect the money from Underwood.

The Court instructed the jury, that, by the proper construction of the contract, the defendant was bound to make good the notes, provided the plaintiff could not collect them by due diligence. The Court further stated to the jury, that the plaintiff had been guilty of laches in respect to Underwood's note, which would prevent a recovery from the defendant, unless they should find from the testimony, that he had waived his right to take advantage of it, and that, if they should believe the evidence, that he did so waive his right, and promise to pay the debt, the plaintiff ought to recover. Verdict and judgment for the plaintiff, and the defendant appealed.

Badger, for the plaintiff .

Strange, for the defendant .

RUFFIN, C. J.

If this were a contract, within the Act for the prevention of frauds, Rev. Stat. ch. 50, sec. 10, it would not be requisite that the written contract should set forth the particular consideration, but it is sufficient to aver and establish it, by proof aliunde. Miller v. Irvine, 1 Dev. & Bat....