Bowen v. Clarke

Opinion by Mr. Justice Bean. The errors assigned arise upon the admission of testimony, and instructions given and refused by the trial court. The principal question presented is whether the [595] defendant P. Basche can be sued jointly with the other defendants, the solution of which depends upon whether his undertaking is original or collateral. If his contract is collateral, and one of guaranty only, his liability and that of his principals is several, and cannot be enforced by a joint action: Tyler v. Trustees of Tualatin Academy, 14 Or. 485; but if he is a joint contractor with the other defendants, the action is properly brought. We understand the rule to be that where two or more persons execute an instrument at the same time, upon the same consideration, and for the same purpose, they are all, in legal effect, joint contractors or obligors, so far as their liability to the other contracting party is concerned, although one may be designated therein as surety, and sign it as such. That one of the parties may have executed the instrument as surety, is mere evidence of the position and relationship of the makers among themselves, and does not affect the joint nature of their obligation or the right to sue them jointly for a breach of the contract. “The undertaking of a surety who signs upon the face, or at the end, of a contract, with the principal, although he adds the word surety to his name,” says Johnson, J., “is an original, and not a collateral, undertaking. It is not a promise to answer for the debt, default, or miscarriage of another, but is an undertaking for a direct performance on his own part. He becomes a party to the contract, and may be treated as principal by the creditor, although he is a surety merely, as between him and' the other party with whom he jointly or severally undertakes. In such cases no writing, other than the body of a contract, is necessary; and the statute of frauds has no application. The debt is his if the contract is valid Perkins v. Goodman, 21 Barb. 218. And, as was remarked by Mr. Justice Reed in Stage v. Olds, 12 Ohio, 168, “ The principle to be [596] extracted from all the cases is that parties connected with the original execution and delivery of a bond, note, or other written instrument, are, in law, unless it be otherwise clearly expressed, joint makers or obligors.” When the undertaking of the surety is not for a direct performance by himself, but only that his principal shall perform, and that he will be bound in case of default, his undertaking is not original, but collateral, and therefore his liability depends upon the terms of his contract, and not upon the character in which he may execute it. Now in this case the lease was executed by all the parties, at the same time, upon the same consideration, and for the same purpose, and the undertaking of the appellant is not made conditional or dependent upon the default of the other defendants, but is an original, unconditional undertaking for a direct performance on his part. It is plain, therefore, within the rule stated, that his contract is not one of guaranty, or an agreement to answer for the debt, default, or miscarriage of another, but that of a joint obligation as to the plaintiff, and, as a consequence, may be declared upon as such: Bay lies on Sureties and Guarantors, 893; Brandt on Suretyship, § 31; Lightner v. Menzel, 35 Cal. 452; Thomas v. Gumaer, 7 Wend. 44; Preston v. Huntington, 67 Mich. 139, 34 N. W. 279; Leonard v. Sweetzer, 16 Ohio, 1; McLott v. Savery, 11 Iowa, 323; Watson v. Beabout, 18 Ind. 281; Scott v. Swain, 8 Atl. 24; Giltinan v. Strong, 64 Pa. St. 242; Rose v. Madden, 1 Kan. 445. Nor is it a matter of any importance that he did not actually occupy the premises. By his contract he binds himself jointly with his codefendants to pay the rent when due, and, if not so paid, he became at once liable, whether he occupied the premises or not: Preston v. Huntington, 67 Mich. 139, 34 N. W. 279. This is not an action for use and occupation, but for breach of a contract en [597] tered into by the defendants jointly. There was, therefore, no variance between the allegations of the complaint and the terms of the lease, and no error in instructing the jury that the defendant P. Basche was a joint contractor or obligor with the other defendants, and liable with them for the payment of the rent as it became due. The other assignments of error, relating to instructions given and refused by the trial court, are without merit. The court adhered substantially to the principles announced in Bowen v. Clarke, 22 Or. 566, 29 Am. St. Rep. 625, 30 Pac. 430, and hence committed no error. Judgment affirmed. Affirmed.