Tissue v. Hanna

• Decision Date: 13 November 1893
• Docket Number: 148
• Citation: 158 Pa. 384,27 A. 1104
• Parties: Tissue v. Hanna, Appellant
• Court: Pennsylvania Supreme Court

27 A. 1104

158 Pa. 384

Tissue v. Hanna, Appellant

No. 148

Supreme Court of Pennsylvania

November 13, 1893

Argued October 11, 1893

Appeal, No. 148, Oct. T., 1893, by defendant, John Hanna from judgment of C.P. Somerset Co., May T., 1890, No. 117, on verdict for plaintiff, Harvey B. Tissue.

Assumpsit on guaranty of judgment note.

At the trial it appeared that on Jan. 7, 1888, defendant, who was plaintiff's guardian, made a settlement with his ward, by which he transferred to him among other securities a judgment note for $250, due May 26, 1887, made by Harrison Younkin guaranteeing the payment of it. Plaintiff came of age three days before the settlement. Other facts appear by the opinion of the Supreme Court.

Plaintiff's point was among others as follows:

"3. If the jury believe that at the time the note in suit was assigned to the plaintiff, the defendant, John Hanna, told him the note was as good as gold, and if said Harrison Younkin was possessed of a large amount of real and personal property, and his credit in the community in which he lived was good and he was regarded as a substantial business man, and neither the plaintiff, defendant, nor the public generally, had knowledge of his true financial condition, and his real financial condition did not materially change between January 7, and May 7, 1888, then the plaintiff cannot be charged with want of due diligence in not attempting to force the collection of the note. Answer: This point is refused. It is for you to say on all the evidence whether there was due diligence used on the part of the plaintiff." [1]

Defendant's points were among others as follows:

"2. That Hanna having assigned the note in suit to Tissue, with a guaranty, on January 7, 1888, the duty was imposed upon the latter to exercise due diligence to enforce payment from Younkin, the maker of the note; and as the note was overdue at the time of the transfer, the exercise of due diligence required of Tissue that he prosecute the claim to judgment and execution, provided the claim could have been made by legal process. Answer: We answer, that, in view of what occurred between the parties at the time of the transfer of the note, the directions given by the guarantor to the plaintiff to write and request payment from the maker, it was his duty to do at least that much towards securing himself within a reasonable time, and on failure of compliance therewith to resort to legal process. Thus qualified the point is affirmed." [2]

"3. That as the undisputed evidence is, that the note was transferred on January 7, 1888, and was then overdue; that Tissue took the note home and mislaid it and that it was not found until after this suit was brought on the 27th day of March, 1890; that he made no demand for payment; made no effort to collect the note; that by reason of the note being mislaid he was powerless to enter the same and obtain judgment thereon and issue execution; that Younkin was the owner of and in possession of a large amount of personal property, out of which the money could have been made, the plaintiff did not exercise such diligence as the law requires, and the verdict must be for the defendant. Answer: If you find the facts as stated in this point it is affirmed, because such negligence would release the guarantor." [3]

"4. That as the plaintiff mislaid the note, made no demand for the money, made no effort to collect the same by legal process, and as the evidence shows that Younkin had sufficient property out of which the money could have been made, he was guilty of such laches as will prevent a recovery by him in this case. Answer: This point is substantially the same as the preceding one, and is affirmed with the same qualifications." [4]

"5. That under the pleadings and all the evidence in this case the verdict must be for the defendant. Answer: We refuse that point. It is for you to say, under the instructions which we have given you as to the law and upon all the evidence in the case, whether the verdict shall be for the plaintiff or for the defendant. This point, like the first point of the plaintiff, would require us to take the case entirely from you, and we decline to do that." [5]

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were (1-5) instructions, quoting them.

Judgment affirmed.

W. H. Koontz, for appellant. -- The contract of guaranty imposed the duty of exercising due diligence upon plaintiff: National Loan & Building Society v. Lichtenwalner, 100 Pa. 100; Campbell v. Baker, 46 Pa. 242; Reigart v. White, 52 Pa. 439; Hoffman v. Bechtel, 52 Pa. 190.

In Craig v. Parkis, 100 Am. Dec. 469 (40 N.Y. 181), it was held that a guarantor will be discharged by delay of six months in taking measures to collect the debt, where all the principals reside in the state and can be personally served.

In the present case the parties lived in adjoining counties, the note contained a warrant of attorney to confess judgment, could have been entered and issued upon any time after its transfer, and the undisputed testimony is that the money could have been made at any time prior to May 7, 1888, when Yonkin's goods were seized in execution by other creditors.

What is contended for here is that there may be such laches shown on part of the party to whom the contract of guaranty is made as would, in law, amount to want of due diligence, and would make it the duty of the court to say so, instead of submitting it to the uncertain action of a jury.

W. H. Ruppel, A. H. Coffroth and J. C. Lowry with him, for appellee. -- The holder of a guaranteed paper must use due diligence to recover from the maker of the note in order to hold the guarantor liable; but what constitutes due diligence is a question of fact depending upon the circumstances of each particular case, and hence must necessarily be referred to a jury to decide. Kramph's Executrix v. Hatz's Executors, 52 Pa. 530; National Loan and Building Society v. Lichtenwalner, 100 Pa. 104.

The courts will carefully scrutinize a settlement between guardian and ward: Say v. Barnes, 4 S. & R. 115; Lukens's Ap., 7 W. & S. 48; Wills's Ap., 22 Pa. 332; Hamlin v. Atkinson, 6 Rand. (Va.) 574; Gale v. Wells, 12 Barb. (N.Y.) 84; Eberts v. Eberts, 55 Pa. 110; Lewis v. Browning, 111 Pa. 493; Royer v. Myers, 15 Pa. 89.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE GREEN:

The learned court below left to the jury the question whether due diligence was used by the plaintiff in endeavoring to collect the note in controversy from the maker. The note was past due for seven months when it was...