Friend v. Smith Gin Co.

Bünn, C. J. (after stating the facts.) The appellant assigns four several errors, for which' she contends-that the judgment of the court below should be reversed. They are as follows, to-wit: “1. The judgment of the lower court is void for want of jurisdiction of the subject matter. “2. It is erroneous, and should be reversed, because this is an action sounding in damages ex contractu as-against Friend, and if the plaintiff’s negligence or want of diligence in prosecuting by all lawful methods its claims-against the Vineyards was the cause of or contributed to-the damages claimed, then Friend should not be held liable, except for such damages as the proof shows-sprung directly, not remotely, from his failure to indorse his guaranty on the Vineyard notes. “3. The judgment should be reversed, because the proof showed, beyond all doubt or cavil, that the plaintiff, as a foreign corporation, was doing business in Arkansas without authority, and directly in violation, if not-in defiance, of the constitution and statute. “4. It should be reversed, because some of the charges of the court to the jury were so confusing and misleading that, when taken in connection with the evidence, no jury, no matter to what degree of astuteness- and learning it may have attained, could bring orderly construction out of chaotic confusion. We say this without intending any disrespect to his honor, the circuit judge.” 1. nmsdicticm of circuit As to the first assignment of error: This court .... has, time and again, held that jurisdiction cannot given the circuit court by a combination of distinct claims, each within the exclusive jurisdiction of a justice of the peace, and that rule is too well settled to be now disturbed. But this is not a suit upon the notes mentioned. They are only brought in to show their nonpayment, and their identity with notes referred to in the written guaranty of Friend. The suit is for a breach of that guaranty, and the measure of damages is the amount of said notes remaining due and unpaid, and this unpaid amount appears to be within the jurisdiction of the circuit court. Hence there was no want of jurisdiction in the circuit court to hear and determine this cause. 2. surety not discharged mere delay. The second assignment of error is to the effect that, the suit being for a breach of the contract of guaranty, Friend, the guarantor, is only liable for such damages as grow out of his failure to endorse the notes; and that, in so far as plaintiff, by its negligence, laches and want of proper effort to collect the notes, has contributed to the damage, he, Friend, ought not to be held liable. The error in this statement is twofold—one of law, and the other of fact, as we view the facts. Friend’s failure and refusal to endorse the notes do not constitute the gravamen of the charge against him in this action. He is sued for a breach of guaranty, in this: that he has failed to have the notes punctually paid, according to the tenor of his contract, when they fell due. There is no question here as to the character of his guaranty. It is absolute and unconditional, and, as we view it, carries with it all the liability of an original undertaking. Cobb v. Little, 2 Greenleaf, 261; Allen v. Rightmere, 20 Johnson, 365; Mathews v. Chrisman, 12 S. S. & M. 595. At all events, no error is assigned that there was a failure to observe any of the prerequisites to the institution of suit usually attendant upon conditional guaranties. If the guaranty is claimed to be otherwise than absolute and unconditional, the observance of such prerequisites has been waived, perhaps, in view of the connection the agent and deceased defendant, Friend, had with the notes from the beginning, and also of the insolvency of the makers. Skofield v. Haley, 22 Me. 164; Janes v. Scott, 59 Pa. St. 178; Beebe v. Dudley, 26 N. H. 249. And in fact it appears that all conditions were substantially complied with, even although it may not have been necessary. The obligation to endorse the notes was only to do something evidentiary in its character. Again, one of the contentions of defendant is that plaintiff refused to take certain security for the payment of the notes tendered by the survivor of the makers after the notes had all become due, notwithstanding the advice of its agent, Friend, so to do. We know of no law requiring a creditor to accept such a tender. Fellows v. Prentiss, 3 Denio, 512; Hunt v. Smith, 17 Wendell, 179. As matter of fact, there does not appear to have been-any particular negligence or laches on the part of the plaintiff; and, if there were such, the fault is as justly laid at the door of its agent, the original defendant in this case, who had possession of the notes for the purpose of collecting them. Nor do we find that any extension of time was given the makers of the notes. There was delay, it is true, and an evident disposition 1 not to push these makers ; but this seems not to have been communicated to them, and, besides, it appears, inferentially at least, to have been the result of consultation between plaintiff and its agent, Friend—at least a non-action concurred in by both for reasons existing at the time. Be that as it may, mere delay to bring suit does not release a guarantor. Read v. Cutts, 7 Greenleaf, 186; Newcomb v. Hale, 90 N. Y. 326. It does not appear to us that there is anything to lessen the defendant Friend’s liability in the conduct of the plaintiff. 3. Presumetion of inuo- As to the third assignment, it does not appear & . . where the contract of agency and guaranty in case was executed, and, as to that, we can but apply the rule announced by this court in Railway Co. v. Fire Association, 55 Ark. 163, the presumption being that there was no violation of law. * There are some verbal inaccuracies, and perhaps inconsistencies, in the instructions of the circuit court, but, as the verdict and judgment upon the whole case seem to be right, we do not deem these defects material. Judgment affirmed.