Delsman v. Friedlander

• Decision Date: 21 October 1901
• Citation: 66 P. 297,40 Or. 33
• Parties: DELSMAN v. FRIEDLANDER et al.
• Court: Oregon Supreme Court

66 P. 297

40 Or. 33

DELSMAN v. FRIEDLANDER et al.

Supreme Court of Oregon

October 21, 1901

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Action by Joseph Delsman against S.H. Friedlander and others. From a judgment in favor of plaintiff, defendant Friedlander appeals. Affirmed.

It is stated in the complaint that for value the defendants I.W Baird and A.M. Baird, on July 19, 1893, executed to the defendant Friedlander their promissory note for $1,000 payable four months after date; that on November 20, 1893 the defendants S.H. Friedlander and John D. Wilcox, for value received, indorsed and guarantied payment of said note, waiving demand, notice of protest, and protest thereof, and delivered the same so indorsed to this plaintiff, who is now the owner and holder thereof. The answer of Friedlander sets up a discharge by reason of plaintiff's failure to make proper demand and give notice of nonpayment, and his delay and neglect to seasonably enforce collection while the defendants Baird were solvent. Trial was had without a jury, and the court found as conclusions of fact: (1) That the note in question was executed in manner as alleged. (2) "That in August, 1893, the plaintiff bought said note from the defendant S.H. Friedlander, and paid to him at said time the sum of $900 therefor, becoming then the owner and holder of the note, and he has ever since been such owner and holder thereof. That at that time said defendants Friedlander and Wilcox indorsed said note in blank, and delivered same to the plaintiff. (3) That November 20, 1893, was the maturity and date of payment of said note. That on said date the plaintiff, through his agent, the United States National Bank of Portland, Oregon, requested the defendants Friedlander and Wilcox to sign the following indorsement and guaranty, to wit: 'November 20, 1893, for value received, I or we hereby guaranty payment of the within note, and waive demand, notice of protest, and protest.' (4) That said defendants Friedlander and Wilcox signed said above-mentioned indorsement and guaranty, and plaintiff did not make demand upon the makers for payment of said note at its maturity, and did not protest same. (5) That the only consideration for said indorsement and guaranty was that plaintiff did not go to the trouble and expense of protesting said note, which he would otherwise have done. (6) That at the time of maturity of said note both the makers of said note had property out of which payment would have been made, and both were financially able to pay the same, and remained so for nearly three years after the maturity of the note, but the plaintiff neglected to take any steps to enforce payment against said makers during said time or since, except the commencement of this action." And as a conclusion of law that the defendants were liable. Judgment having been entered accordingly, Friedlander appeals.

A. Bernstein, for appellant.

R.C. Wright, for respondent.

WOLVERTON J. (after stating the facts).

The appellant maintains that the legitimate deductions from the findings of the court are that he is a guarantor and that by reason of plaintiff's neglect for more than three years, while the defendants Baird remained solvent, to take any steps towards the collection of the note, he is discharged from the obligation. Primarily, it may be stated as a legal proposition sustained and established by the very great weight of judicial opinion that a guaranty of the payment of a note or other obligation is an absolute undertaking to pay it when due, and that no demand or notice of nonpayment is necessary or requisite to fix the liability of the guarantor; and that mere passiveness on the part of the holder will not release such guarantor, even if the maker was solvent at its maturity, and thereafter became insolvent. Roberts v. Hawkins, 70 Mich. 566, 38 N.W. 575; Hungerford v. O'Brien, 37 Minn. 306, 34 N.W. 161; Wheeler v. Lewis, 11 Vt. 265; Noyes v. Nichols, 28 Vt. 159, 174; Bloom v. Warder, 13 Neb. 476, 14 N.W. 395; Gage v. Bank, 79 Ill. 62; Penny v. Manufacturing Co., 80 Ill. 244; Breed v. Hillhouse, 7 Conn. 523; Bank v. Hopson, 53 Conn. 453, 5 A. 601; Baker v. Kelly, 41 Miss. 696, 93 Am.Dec. 274; Wright v. Dyer, 48 Mo. 525; Bank v. Sinclair, 60 N.H. 100, 49 Am.Rep. 307; Read v. Cutts, 7 Me. 186, 22 Am.Dec. 184; Allen v. Rightmere, 20 Johns. 365, 11 Am.Dec. 288; Blair v. Ward, 10 N.J.Eq. 119; Clay v. Edgerton, 19 Ohio St. 549, 2 Am.Rep. 422; Bayley v. Hazard, 3 Yerg. 487. And this...