Riddle v. Thompson

• Decision Date: 29 October 1883
• Parties: Riddle <I>versus</I> Thompson.
• Court: Pennsylvania Supreme Court

Page 330

104 Pa. 330

Riddle versus Thompson.

Supreme Court of Pennsylvania.

October 18, 1883.

October 29, 1883.

October 18th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and CLARK, JJ. GREEN, J., absent

ERROR to the Court of Common Pleas of Butler county: Of October Term 1883, No. 110.

COPYRIGHT MATERIAL OMITTED

Charles McCandless (with whom was W. H. H. Riddle), for plaintiff in error.—The parties called this instrument a guaranty, and it was a collateral agreement that the judgment was valid against the defendant, that it was good, and that if the defendant did not pay it, they would. The guarantors suffered no injury by the forbearance and are therefore still liable: Follmer v. Dale, 9 Barr 83; Van Rensselaer v. Kirkpatrick, 46 Barb. 194. The sureties of Thompson were fixed by the confirmation of his account for the balance due the lunatic of over fifteen thousand dollars, and by the terms of their bond they must pay that amount if Thompson did not. He was unable to pay, and an attachment was awarded. This money was raised to pay and did pay a debt they were liable and already fixed for. Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his promise though in form a promise to pay the debt of another, is an original and binding contract: Arnold v. Stedman, 45 Pa. St. 186; Giltinan v. Strong, 64 Pa. St. 242; Patten v. Hassinger, 69 Pa. St. 311; Townsend v. Long, 77 Pa. St. 143; Taylor v. Preston, 79 Pa. St. 436; Landis v. Royer, 59 Pa. St. 95. The promise to forbear was nudum pactum and it has always been held that an agreement to give time, in order to discharge the surety, requires a consideration to support it: Ashton v. Sproule, 35 Pa. St. 492; Brubaker v. Okeson, 36 Pa. St. 519; Zane v. Kennedy, 73 Pa. St. 182. Mere forbearance by a creditor will not discharge the surety, however prejudicial it may be to him: United States v. Simpson, 3 P. & W. 437; P. Ft. W., &c. R. R. v. Shaeffer, 59 Pa. St. 351; Richards v. Commonwealth, 40 Pa. St. 146.

T. C. Campbell (with whom were J. D. McJunkin and R. P. Scott), for defendants in error.—Where some language was used, indicating that the responsibility of the guarantor was to be immediate and not to wait upon proceedings against the principal debtor, the courts have held the promissor to be a surety. If no such language was used they have held him to be a guarantor: Seiple's Appeal, 11 W. N. C. 392; Reigart v. White, 52 Pa. St. 440; Amsbaugh v. Gearhart, 1 Jones 482; Maule v. Bucknell, 14 Wright 39. The confession of revival of the judgment was a sufficient consideration for the extension of time: Clippinger v. Creps, 2 Watts 48.

The opinion of the court was delivered October 29th 1883.

PER CURIAM.

While there is a radical difference between the liability of a surety, and one who assumes a collateral obligation to guarantee the payment of the debt of another, yet the language of the agreement which shall constitute the one or the other has not always been clearly defined by the authorities. In the present case we think the language used made the defendants in error...