International Harvester Co. v. Schultz

Dean, J. This is a suit to recover on a guaranty of payment of 44 negotiable promissory notes. The makers were not made parties defendant. A jury was waived. Plaintiff recovered judgment for $1,927.39 and costs. Defendant appealed. Defendant purchased farm machinery from plaintiff and sold it to his customers, taking the notes sued on in payment. Some were payable to defendant’s order and some to plaintiff’s order. All of the notes were delivered to plaintiff before maturity. The makers defaulted at maturity and defendant refused payment. The guaranty that was written on the notes appears in the syllabus. Two questions are presented: First, is the guaranty an independent contract by defendant to pay to plain [754] tiff the amount due on the respective notes on failure of makers'to pay at maturity? second, are any of the costs taxable to plaintiff? The law seems to be settled that the guaranty sued on is a contract to pay the notes on failure of the makers to pay at maturity. Bloom & Co. v. Warder, Mitchell & Co., 13 Neb. 476; Bickford v. Gibbs, 8 Cush. (Mass.) 154. In view of the comprehensive terms of the guaranty, plaintiff was under no obligation to undertake the collection of the notes' from the makers, nor to make them ■ parties defendant. Each of the 44 notes was separately stated as a cause of action. While the suit was pending 28 of the notes were paid to plaintiff by the respective makers, and as to such notes the causes of action were dismissed and judgment was rendered for plaintiff on the remaining notes. Defendant argues that, because the suit was dismissed as to the notes paid, a part of the costs should therefore be taxed to plaintiff. His contention cannot prevail. • The power of courts to award and tax costs in legal proceedings was unknown at the common law. Branson v. Branson, 84 Neb. 288. We have no statute in this state authorizing the court to apportion any part of the costs against plaintiff in an action involving such facts as are presented by the record before us. It follows that, in the absence of such statute the prevailing party is entitled to recover costs. 15 C. J. p. 28, sec. 14. Finding no reversible error, the judgment is Affirmed. Sedwick, J., concurs in the conclusion.