Coleman v. . Fuller

(DAVIS, J., dissenting.) A jury trial was waived and the case heard by the Court. Plaintiff sued on the following bond and guaranty: "$100. SMITHFIELD, N.C. Sept. 27, 1881. "Twelve months after the completion of the Midland North Carolina Railway from Goldsboro to Smithfield, and the arrival of the first train at the depot, within three-fourths of a mile of the courthouse at Smithfield, I promise to pay W. J. Best, President of said Railway Company one hundred dollars, with interest from the date of said completion, in consideration of the running of said road to or near Smithfield. (Signed) "J. E. EARP." [Seal.] "I guarantee payment of the foregoing bond, September 27, 1881. (Signed) "D. W. FULLER." [Seal.] (329) It was admitted that the road was completed from Goldsboro to Smithfield on the 12th of July, 1882, and that the first train arrived at a depot within three-fourths of a mile of the courthouse at Smithfield on the said day. The only contention was whether the action is barred as to D. W. Fuller. His Honor ruled that it was, and gave judgment against plaintiff for costs. Plaintiff excepted and appealed. The single question presented in this appeal is whether the action is barred, as to the defendant Fuller, by the statute of limitations. The Code, § 152, par. 2, provides that "an action upon a sealed instrument against the principal thereto must be commenced within ten years after the cause of action accrues." The guaranty executed by the defendant Fuller is under seal, and is written at the foot of the bond which was executed by the defendant Earp. It is contended by Fuller, the appellant, that he is not a principal to "a sealed instrument" within the above provision of The Code, but that he is simply a surety to the bond, and, as such, is within the principle ofWelfare v. Thompson, 83 N.C. 276, and other similar decisions which apply the three-years' statute of limitations. This leads us, therefore, to the consideration of the nature and liability of the contract of guaranty. A guaranty is a contract in and of *Page 273 itself, but it also has relation to some other contract or obligation with reference to which it is collateral. Anderson Law Dict.; Carpenter v. Wall,20 N.C. 279. "A surety is bound with his principal as an original promissor. (330) * * * On the other hand, the contract of a guarantor is his own separate contract. * * * It is in the nature of a warranty by him that the thing guaranteed to be done by the principal shall be done, and not merely an engagement, jointly, with the principal to do the thing." Baylies' Sureties and Guarantors, 4. A "guarantor is not an endorser or surety." 2 Rand Com. Paper, § 849. "The surety's promise is to pay a debt, which becomes his own debt when the principal fails to pay it. * * * But the guarantor's debt is always to pay the debt of another, * * * but he `is not an endorser nor a surety.'" 2 Parsons' Notes and Bills, 117-118. "A guaranty is a special contract, and the guarantor is not in any sense a party to the note." Lamorieux v. Hewit, 5 Wend., 307; Ellis v. Brown, 6 Barb., 282; Miller v. Gaston, 2 Hill, 188-190; Story on Prom. Notes, § 3. It is a special contract, and must be specially declared on. 1 Chit., p. 1; Baylies, supra, 4. These authorities very abundantly show that the contract of a guarantor is a separate and distinct obligation. Fuller is no party to the bond of Earp, and, as to his contract of guaranty, he cannot be regarded otherwise than as principal. If this were not so, we would have the anomaly of a contract with only one contracting party. It is said, however, that there is a distinction, growing out of the fact that the guaranty is written upon the same paper as the bond. This does not in the least alter the character of the obligation. Lamorieux v.Hewit, supra. "The engagement or contract of guaranty may be, and often is, written on the back of the note or bill, but it may as well, so far as the guaranty is concerned, be written on a separate piece of paper." 2 Parsons,supra, 119. This feature becomes material only upon questions arising upon the negotiability or assignment of such contracts. No such questions are involved in this appeal. We conclude that Fuller is not a surety to the bond, but a (331) principal to the guaranty — "a sealed instrument" — and, this being a separate contract, the suit is not barred until ten years after the cause of action accrued. Per Curiam. Error.