Cobb v. Little

Mellen C. J. delivered the opinion of the Court. One objection to the plaintiff’s right of recovery is, that Cobb alone commenced the action on this note against Crague the promisor, and obtained judgment against him; and that therefore they are now estopped to aver that the property of the note is in both the plaintiffs. As the defendant in this action is not bound by that judgment, he cannot avail himself of it by way of estoppel, as against the plaintiffs. See Phil. Evid. 249. and cases cited. Besides, in the action against Crague, Cobb declared that the note was indorsed to him ; and being a blank indorsement, it might be alleged to have been indorsed to a person to whom Cobb had transferred it by delivery. For convenience he might sue in his own name only, as indorsee, though he was not the [264] sole, owner. And it may be further observed, that there is proof in the case of a joint interest in the two plaintiff’s iri this action, and no objection was made to its admission. There is nothing of the nature of an estoppel, according to the legal import of the term, applicable in this cáse. And we think this' objection cannot prevail. Another objection is, that the defendant is discharged from the obligation of his guaranty, by the negligence of the plaintiffs in not collecting the amount of Crague; it appearing that the suit against him was'not commenced, till about eighteen months after the note became due ; during which time Crague -ivas solvent, and possessed of sufficient visible property. It is understood that the defendant and Crague both live in the Same town; and the pecuniary circumstances of the latter must have been known to Him, more easily than to the plaintiffs, who reside in Portland ; and as it does not appear that the defendant had any doubts of the solvency of Crague before, or at the time Cobb commenced his action against him, and if he had, that he communicated them to him, so as to put him on his guard to secure the demand, dr intimated a wish to have Crague sued for the money,- we do not perceive that the plaintiffs have been guilty of such negligence 'as to have lost their remedy against the defeildant; But we think there is another ground on which the action is éustainable. The guaranty, in its terms,' is absolute, that the note should'be paid in six months. Sometimes a guaranty is conditional, as in the case of Tyler v. Binny, 7 Mass. 479 ; sometimes absolute, as in the case before us, and in Bank of Men York, v. Livingston, cited by the defendant’s counsel; Parties make this species of contract, like all others, on such terms as they choose. But it is ^contended that where a guaranty is absolute in its terms, still it is incumbent on the creditor to use all due diligence to obtain payment of the original debt- or, or he will lose the benefit of it. No" cases have been cited' to establish this position, and the question is, why a person should not be bound as effectually and as long upon an absolute guaranty, as upon any other absolute promise, (unless perhaps, in case of fraud or very gross negligence on the part of him to- whom it is given;) an'd why the court should attach at [265] tacit condition in one case, and not in the other, when in both the written engagement is absolute. In Hunt v. Adams, 6 Mass. 519, the guaranty oi* promise relied on was in these words; “ I acknowledge myself to be holden as surely for the payment of the above note.” The note had been signed by Chaplin. Parsons C. J. in delivering the opinion of the Court says, “ We are satisfied that the defendant is answerable as “ an original promisor, and not merely on the contingency “ of Chaplin’s failing to pay. However, it was in evidence “ that when the note was delivered to Bennett, he and Chaplin “ considered the defendant as holden for the payment, on the “ condition that Chaplin could not pay. It would require some “ consideration before evidence of this kind was admitted to “ control the legal effect of the writing.” None of the cases cited by the defendant’s counsel are like this. In Moakly v. Riggs the engagement was collateral and conditional. In. Stafford v. Low, Beekman v. Hale and Tilghman v. Wheeler, no express guaranty was given. In Phillips v. Astling particularly relied on by the counsel, the guaranty of the defendant was, that the debt should be paid by a bill to be drawn by Davenport Phinny on Houghton ; and the case shows that the bill, though drawn and delivered to him, was never presented to Houghton for acceptance or payment, or any notice whatever given to the defendant of this omission or the non payment of the debt. In the case before us the defendant’s engagement was absolute, that the note should be paid in six months. It was not paid by Crague or by him. It was the duty of the defendant upon such an engagement, to see that Crague paid the money within the time specified; and if he did not, to take notice of his' neglect and pay the amount of the note himself. Accordingly the judgment of the Court of Common Pleas is affirmed.