Carroll County Sav. Bank of Uniontown v. Strother

• Decision Date: 21 April 1885
• Parties: CARROLL CO. SAVINGS BANK OF UNIONTOWN v. STROTHER.
• Court: South Carolina Supreme Court

22 S.C. 552

CARROLL CO. SAVINGS BANK OF UNIONTOWN v. STROTHER.

Supreme Court of South Carolina.

April 21, 1885

1. Generally a guaranty is a collateral undertaking, and it is essential to its existence that there should be some one liable as principal; and if there be no valid claim against the principal, there is no existing contract of guaranty.

2. Judgment rendered by the judge without a jury, against persons alleged to be guarantors, without proof of demand against the principal, upon an instrument never proved, nor fully before the court in pleadings or evidence, set aside the answers being held to have sufficiently raised issues requiring proof.

3. An admission that defendants " signed an instrument of writing supposed to be the paper sued on, but cannot be positive without an inspection of said paper, and cannot say whether the endorsement was before or after due or contained a guaranty" -was not such an admission as would justify a judgment without proof of the instrument.

Before ALDRICH, J., Edgefield, October, 1883.

The opinion sufficiently states the case.

Messrs. Jones & Jones, R. W. Shand , for appellants.

Messrs. W. H. Lyles, B. W. Bettis, jr. , contra.

OPINION

MR JUSTICE MCGOWAN.

John C Strother executed a paper, of which the following is a copy:

" SALUDA OLD TOWN, S. C., March 30, 1878.

" $656. Eighteen months after date I promise to pay to the order of the Taylor Manufacturing Company of Westminster six hundred and fifty-six dollars, payable at Central National Bank of Columbia, S. C., for value received, with exchange on New York, and if not paid when due, bear interest from maturity at the rate of ten per cent. per annum, as agreed for negotiating and carrying this loan, so long as it remains unpaid, and also all counsel fees and expenses in collecting this note if it is sued or placed in the hands of counsel for collection; hereby waiving all homestead and personal exemptions without any relief whatever, or from valuation or appraisement laws. The express conditions of the sale and purchase of the engine and saw-mill for which this note is given is such that the title, ownership, or possession does not pass from the said Taylor Manufacturing Company until this note, with interest, is paid in full. The said company have full power of declaring this note due and take possession of said engine and saw-mill at any time they deem this note insecure, even before maturity of same.

Witness, Ira P. Culbreath. (Signed) John C. Strother."

On this paper appeared the following endorsement: " For value received we hereby guarantee the payment of within note when due, and hereby waive the demand and notice of non payment thereof." (Without date.) " (Signed) Taylor Manufacturing Company. P. H. Irwin, Treas., J. E. Taylor, David Fowble, Edward Lynch, and H. Haines."

On March 17, 1883, this action was brought by the Carroll County Savings Bank of Uniontown, the plaintiffs, against John C. Strother as maker of a promissory note, and David Fowble and Edward Lynch as endorsers thereof before due to the plaintiffs; but no copy of the paper was attached to the complaint. Strother answered, stating that the note was one of four, aggregating $2,126, given for a steam engine, saw-mill, and appurtenances, and alleging failure of consideration, fraudulent concealment, usury, & c., and pleading that more money had been paid than the property was worth. The attorney of Fowble and Lynch asked for a copy of the paper upon which they were alleged to be guarantors, but it was declined. They then answered, repeating the defence set up by Strother, and denying that they were liable as guarantors, " the requirements of the law not having been complied with." They stated that they " did endorse and deliver to the plaintiffs an instrument of writing supposed to be the paper sued on, but cannot be positive of this without an inspection of said instrument. Whether said endorsement was made before or after due, or contained a guaranty, they cannot now answer without an inspection of the instrument."

Again, complaining that no copy of the paper sued on was filed, the defendants gave notice of a motion to amend their answer by stating that the alleged guaranty was signed by several persons jointly, some of whom had not been sued, and also demurred to the complaint upon the ground that several causes of action were improperly united, one being against John C. Strother as maker, and the other against them as guarantors.

On this state of the pleadings the cause came on for trial. The demurrer as to the misjoinder of actions was overruled. A jury was empanneled and the case opened. The counsel for the plaintiffs and defendants do not agree as to what occurred at the trial, and upon application to the Circuit judge to settle the case he was unable to remember the particulars in which they differed. But we will take the statement of the respondent, which was as follows: " At the hearing of the cause, after the complaint was read, the defendants David Fowble and Edward Lynch, moved, upon the notice before referred to, for leave to amend their answer, which motion was refused by the court. After the reading of the pleadings, and before any evidence was introduced, plaintiff moved the court for judgment against David Fowble and Edward Lynch, and for leave to discontinue the case against John C. Strother, and thereupon the court passed the following order: 'The case having come on for a hearing and the claim for counsel fee having been withdrawn, after argument by counsel, it is ordered that plaintiff have judgment against David Fowble and ...