Janes v. Scott

• Decision Date: 29 October 1868
• Citation: 59 Pa. 178
• Parties: Janes <I>versus</I> Scott <I>et al.</I>
• Court: Pennsylvania Supreme Court

59 Pa. 178

Janes versus Scott et al.

Supreme Court of Pennsylvania.

October 20, 1869.

October 29, 1868.

October 20th 1869.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Erie county: No. 125, to October and November Term 1867.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. C. Marshall and J. H. Walker, for plaintiff in error.— The plaintiffs should have liquidated their damages by a suit against Burke: Hoffman v. Bechtel, 2 P. F. Smith 193; Kramph v. Hatz, Id. 525; Brown v. Brooks, 1 Casey 210; Kirkpatrick v. White, 5 Id. 176; Gilbert v. Henck, 6 Id. 205; Stark v. Fuller, 6 Wright 320. The accident was unavoidable and was a defence: 2 Parsons on Cont. 184.

B. Grant, for defendants in error.—The guaranty was to answer for Burke's failure to perform his contract, without regard to the cause. The insolvency of the principal may be shown by any legitimate evidence.

The opinion of the court was delivered, October 29th 1868, by THOMPSON, C. J.

We entirely agree with the learned judge below, that the guaranty of the defendant, the plaintiff in error, was not a guaranty of mere skill and fidelity on part of Burke the contractor, distinct from, or independent of, performance, but that it was for the substantial completion of the contract according to its terms ex visceribus suis. This is imported in the terms used in the contract, viz., "that the said Burke shall well and faithfully perform his part of the foregoing contract." The contract distinctly provides for what was to be done. If anything be needed to sustain this interpretation of the words, it will be found in the clause in the contract inserted for the benefit of the contractor, — "unavoidable accidents, to be allowed for in computing the time for the completion of the well." If only skill and fidelity were guarantied, this would be an unmeaning provision, for nothing more than the exercise of these qualities by Burke would have been required, and he could abandon the work without completing it if he had fully exercised them. If the contract had been for skill and fidelity, the words used would only have extended to that, it is true; but it was for more — it was for the complete performance of a contract that Burke bound himself, and the guaranty was that he should well and faithfully complete it, and if unavoidable accidents should occur, time should be allowed in addition to the contract time for doing and completing the work. There was no error, therefore, in thus construing the guaranty.

2. The next question we shall notice is that raised in the defendant's 2d point. The court below decided that correctly beyond doubt. The plaintiffs below were not bound to liquidate their damages by reason of the failure of Burke to perform his contract, by a suit against him, before proceeding on the guaranty of the defendant. They could do this by proceeding directly on the contract of guaranty, as was done, setting forth in their narr. the failure on part of Burke to perform according to contract, and showing due diligence on their part to obtain redress from him, or such facts as would negative the idea of negligence in this particular. One way of establishing due diligence undoubtedly is by suit against the principal without remunerative results, and it is often the most conclusive. But this is usually for a different purpose than the liquidation of the claim. I have examined very many precedents in our books on this point, and I find quite as many cases in which suit on the contract of guaranty was the first step, as when suit was brought against the principal first. In Brown v. Brooks, 1 Casey 210, it is said, "when the principal debtor is insolvent at the maturity of the debt, no such proceeding (as judgment and execution), is necessary as a foundation to an action on the guaranty. Nor is it necessary in such a case to show even a demand on the principal debtor and notice of non-payment given to the guarantor. This was decided in Gibbs v. Cannon, 9 S. & R. 292." We need not cite further authorities to...