Allen v. Hubert

[261] The opinion of the court was delivered by Strong, J. All the assignments of error are immaterial, if the contract into which the plaintiff in error entered was an undertaking of suretyship rather than of technical, strict guaranty. And we are of opinion that he undertook as surety. His engagement was direct, and not contingent. The c.ase is not to be distinguished from Marburger v. Potts, 4 Harris 9. In both cases the form of the contract was that of an original and absolute liability. Marburger v. Potts was not shaken by the subsequent case of Gilbert v. Hench, 6 Casey 205, where the engagement of the defendant was in different terms. It was not noticed, indeed, in the opinion of the court. Nor was it necessary, to the decision of the latter ease, to determine whether the instrument sued upon was an engagement of suretyship or of guaranty. Considered as either, the plaintiff was entitled to his judgment. Regarding the contract in this case, therefore, not as a strict guaranty, it is needless to consider the answers of the court to the defendant’s points, or the exceptions taken to the admission or rejection of evidence. The exception to the charge of the court is not sustained. The charge is not brought up by the record, and we are not informed what it was. No bill of exceptions'is sealed, except one taken to the opinion of the judge upon the motion for a new trial. It need not be said that is not subject to review in this court. The judgment is affirmed.