Darnell v. Dolan

WILLSON, C. J. (after stating the facts as above). Appellant insists that he was not liable on the guaranty sued on because he was induced to execute it in reliance on a representation made to him by Males that the one first maturing of the two Siebold $500 notes had been paid, when, in fact, it had not been paid. But it does not appear from anything in the record that in making the representation Males was authorized to act for, or even that he assumed to act for, appellee. Appellee’s rights under the guaranty could not, it should he needless to say, be affected by a misrepresentation made by a person who was without authority to act for him in making it. Appellant next insists that he was not liable because of a recital in the guaranty that said note had been paid. But the recital was his own, and certainly he should not be heard to complain that it was false. Evidently the insistence is made on the theory that the representation should be treated as having been made by appellee to appellant, because the instrument contdining it was written at appellee’s instance by his attorney. We think it is plain that such a theory is not maintainable. Appellee was not willing to purchase the notes Males wished to sell to him unless the first of said two Siebold notes had been paid and the payment of the other one by Crites was guaranteed by some one acceptable to him. He was in the attitude of saying to Males: “If you will have Darnell to execute an instrument recited as a fact that the first of the two Siebold notes has been, as you assure me it has [859] been, paid, and guaranteeing tie payment by Crites of tbe other of said notes, I will purchase the notes you propose to sell to me.” Appellant did not have a right, because the instrument Males asked him to execute had been prepared by appellee, to treat the recital in question as a representation made by appellee to him to induce him to execute it. On the contrary, he should be held to have known that appellee’s purpose in embodying the recital in the instrument was to have him (appellant) to vouch for the truth of the representation. The right to complain because the recital in question was untrue accrued to appellee, and not to appellant. 1 Brandt on Suretyship and -Guaranty, §§ 52,56. The remaining contention is that appellant was not liable on the guaranty, because, in the negotiations resulting in the conveyance of the lot to appellee (then the holder of all the incumbrances existing on it) by Crites, the lien existing to secure the payment of the second as well as the others of said Sie-bold notes had been canceled, and Crites had been released by appellee from liability on account of his (Crites’) undertaking to pay the same. It is true as a general rule that, if the principal debtor is released by the creditor, the guarantor (is thereby also discharged. It is also true as a general rule that, if the creditor relinquishes a lien he has on property of the principal debtor to secure the debt, the guarantor is to the extent of the value of the lien relinquished discharged from liability. 1 Brandt, §§ 164, 480. But it is also true that if the guarantor consents that the principal shall be released, and that the security shall be relinquished, he will not thereby become discharged of liability on his guaranty. 1 Brandt, §§ 165, 480, and note 12. The trial court found as facts that Males acted with appellee in the negotiations resulting in the release of Crites and the ex-tinguishment of the lien of the Siebold notes on the lot, and that appellant, when requested by appellee to advise with reference to same, replied that “whatever Males did was all right.” In view of the judgment rendered, we think this finding should be construed as a finding that appellant consented to and acquiesced in the arrangement made with Crites. "We are of the opinion that error in the judgment rendered has not been shown. Therefore it is affirmed.