Hartman v. First Nat. Bank of Lancaster
| Decision Date | 01 October 1883 |
| Parties | Hartman <I>versus</I> First National Bank of Lancaster. |
| Court | Pennsylvania Supreme Court |
Before GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. CLARK, J., absent. MERCUR, C. J., did not sit.
ERROR to the Court of Common Pleas of Lancaster county: Of July Term 1883, No. 54.
Nauman and P. D. Baker, for the plaintiff in error.— Hartman's contract was that of a guarantor: Isett v. Hoge, 2 Watts 128; Bank v. Eyer, 8 P. F. S. 97; Mizner v. Spier, 15 Norris 538. As such, he was not liable to pay, until the other parties to the note had been pushed to insolvency. Our offer of testimony tended to show that this had not been done, and its exclusion was therefore error.
A. Herr Smith, for the defendant in error.—The guaranty is not general, but special. Even if it were general, the bank has in this instance exhausted the makers, Diller & Groff, beyond whom it could not go, as the indorsers are, by the act of the guarantor, Mr. Hartman, discharged. Nor could Mr. Hartman, even as a general guarantor, compel the bank to follow up Mr. Swartz, who under his second paper, becomes a general guarantor. But Hartman's contract is clearly special. He guarantees the payment of the note "without protest." If he had omitted the words "without protest," the guaranty would have been general: Campbell v. Baker, 10 Wr. 245; Roberts v. Ridde, 29 P. F. S. 468; Mizner v. Spier, 15 Norris 538.
The undertaking specially declared on is clearly a technical guaranty, identical in form with that in Zahm against the same defendant in error, No. 53 of July Term 1883, in which an opinion has just been filed. What is there said in regard to the liability of the guarantor and the error of the court in directing a verdict for the plaintiff below, is applicable to this case.
The testimony offered and excluded by the court would have tended to prove that Swartz, the second indorser, continued liable to the bank notwithstanding the note may not have been formally protested. His guaranty, alleged to have been given to the bank before the maturity of the note, was virtually a waiver of protest so far as he was concerned. If his contract relation to the bank was such that it could have compelled him to pay the note, it was bound to do so before resorting to the plaintiff in error, who was strictly a technical guarantor. The testimony referred to should have been...
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