Moakley v. Riggs

Spencer, Ch. J. delivered the opinion of the Court. The .first inquiry is, whether the defendant’s liability under his engagement, that the note was good and collectable, after due course of law, did not depend on a condition precedent, to be performed by the plaintiff, the use of due diligence in attempting to collect the note by legal prosecution. It does not admit of a doubt, that the defendant, who is a mere guarantee, can only be made responsible by the plaintiff’s showing a pérformance, on his part, of the condition, on the observance of which the defendant consented to be answerable for the amount of the note. The defendant’s undertaking, that the note was good and collectable, after due course of law, imposed a necessity upon the plaintiff, if he meant to resort to his guaranty, to prosecute, with due diligence, all the parties to the note. The guaranty extends as well to the maker of the note as to the endorsers. The plaintiff accepted the note with the several and respective liabilities of the maker and endorsers; and his title to demand of the defendant the performance of the guaranty, depends on his showing, either that he has, with reasonable vigilance, pursued a due course of law, that is, commenced and prosecuted suits to effect, against all the parties to the note, and has thus ascertained, that the note was not good and collectable, or he must set forth a legal excuse for omitting to do so. There is no averment, that a suit has been prosecuted against Hull, the maker of the note, and the I excuse is, that he was discharged from all his debts by a commissioner, pursuant to the statute, on the 15th of March, 1819. Though the act of God, or the act of the law which renders the performance of an act stipulated to be done, unlawful, may excuse a party from a strict compliance with his contract, as matter of defence, it may well be doubted, whether an engagement by one to perform an act, [72] on the previous performance of another act by the other. can be enforced, without showing the previous act done, or that its performance was dispensed with, or prevented by him who was to perform the subsequent act.' Here, however, the very excuse set up is no answer to the objection made by the defendant; for seventeen months had elapsed after the note became due, before Hull was discharged from his debts. We know, judicially, that by the course of the Court, Hull might have been sued, and judgment obtained long before his discharge. Indeed, the plaintiff himself shows, that with respect to the endorsers, judgment was obtained against them, on the 8th of May, 1818, more than ten months prior to Hull’s discharge as an insolvent. Courts are to interpret and enforce, not make, or alter the contracts of parties. The defendant has a right to insist, that he entered into this guaranty, under the express condition, that he was not to be liable, unless the note turned out not to be good, or collectable, after a regular prosecution against the maker and endorsers of the note, with due and reasonable diligence. This is the substance of his engagement; and we think it cannot admit of a doubt, that the total omission to prosecute Hull, for the period of seventeen months, was a clear and,culpable negligence, which absolved the defendant from his guaranty. We do not mean to say, that a suit should have been brought forthwith, after the note fell due, but, at all events, a term should not have been lost. And when the defendant is regarded as a surety, most emphatically he cannot be bound beyond the scope of his engagement. Judgment for the defendant, with leave to the plaintiff to amend, on payment of costs.