Gilbert v. Henck
| Decision Date | 01 January 1858 |
| Citation | 30 Pa. 205 |
| Parties | Gilbert versus Henck. |
| Court | Pennsylvania Supreme Court |
Brightly, for plaintiff in error.—The distinction taken in this state between a surety and a guarantor is well settled. The latter assumes but a collateral contingent liability. His engagement is to pay in default of solvency in the debtor, provided due diligence was used to obtain payment from him: Isett v. Hoge, 2 Watts 129; Snevily v. Ekel, 1 W. & S. 204; Marberger v. Pott, 4 Harris 13; Johnston v. Chapman, 3 Penn. R. 18, 20; Leser v. Frantz, Supreme Court, 20th January 1853.
It has also been decided to be necessary for the plaintiff to aver in his declaration that he had used due diligence to enforce payment from the principal debtor. This was the very point in Parker v. Culvertson, 1 Wall. Jr. 149, 161. In that case there was a demurrer to the declaration in an action upon a guaranty, on the ground of the want of such a covenant, which was sustained by the Circuit Court of the United States.
The declaration in this case shows upon its face that the suit was brought against the guarantor before the commencement of the action against the principals, and the only averment of an attempt to enforce payment from them, is, that subsequently to the institution of this suit, and before the filing of the declaration, an action was brought against the principals, that the summons was returned nihil habet as to one of them, that judgment was obtained against the other, and that a fieri facias issued thereon was returned nulla bona. This is not enough to maintain the action: Brown v. Brooks, 1 Casey 212.
But a return of nulla bona, by itself, is not such evidence of insolvency against third persons as would be sufficient to sustain this suit, even if it had been had before the institution of this proceeding. It is nowhere so decided: Willard v. Wickham, 7 Watts 292-3.
The second question is, whether the facts given in evidence by the defendant constituted a sufficient defence to the action.
It will be perceived, that the lease from Henck to Stroeck and Baiker contained a proviso that the lessees should not assign the premises, without the consent in writing of the lessor or his assigns; and that the covenant of guaranty is for the true and faithful performance of the contract on the part of the lessees, without any mention of their assigns. The guarantors, with the knowledge that the lease was assignable with the consent of the lessor, would appear to have excluded the idea that their covenant was to extend to the assignees of the original lessees.
The lessees did assign, with the consent of the lessor, by a contract to which the guarantors were not parties; and the lessor entered into a new contract with the assignee by the instrument of the 14th May 1855. All the rent claimed became due after that date.
Now, whether this transaction be considered as the creation of a new tenancy on the part of the assignee; or of a simple assignment without the knowledge of the guarantors, in either aspect it would appear to be such an alteration of the contract as would discharge the guarantors from further liability: Follmer v. Dale, 9 Barr 85.
Risler, for defendant in error.—The record shows a substantial cause of action: Brooks v. Brown, 1 Casey 210; McDoal v. Yeomans, 8 Watts 361; McClurg v. Fryer, 3 Harris 293.
But this was not a contract of guaranty; it properly belongs to that class of agreements in which it is neither necessary to aver or prove insolvency: Geddis v. Hawk, 1 Watts 280; Amsbaugh v. Gearhart, 1 Jones 482; Silver v. Street, Brightly's R. 96; Girard Insurance Co. v. Finley, 7 Leg. Int. 102; Cochran v. Dawson, 1 Miles 276; Slingerland v. Morse, 8 Johns. 463.
The paper of the 14th May 1855 cannot by any reasonable construction be held to release ...
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