Virden v. Ellsworth

Hahna, J. Ellsioorth sued Eord and Virden, upon an instrument in writing, executed by Eord, for the payment of rent, and a guaranty thereon by Virden. The complaint is against Ford, upon the writing, and avers the non-payment, by him, of rent as stipulated; and against Virden, upon the indorsement thereon signed by him, and which, it is averred, was executed on the same day, and in consideration that Ellsworth would deliver possession of the premises to Ford, and is in these words, to wit: “For value received, I guaranty the payment of the rent, as stipulated by said Ford, in case of non-payment, by him. August, 11, 1850.” Separate demurrers were filed, by the defendants, to the complaint, which were overruled. It is insisted that there was a misjoinder of parties and, of course, of actions, and that the complaint does not state facts sufficient, &c. The argument is, that the liability of Ford was primary, and that of Virden, secondary; and, therefore, the instrument not being negotiable, they could not be joined; because there was no joint liability, and the causes of action show that there was no unity of interest, 2 R. S., § 16, p. 31; the one being liable, if at all, as lessee, the other, as guarantor. ■ We are of opinion that the parties were improperly joined. The undertaking, or contract, of the guarantor was distinct [145] from that of the principal, and collateral thereto; and his liability dependent upon a contingency, namely: the nonpayment of rent by the lessee. Nelson v. Boynton, 3 Met. 396; Skelton v. Brewster. 8 Johns. 376. O. S. Orth and J. A. Stein, for appellants. Wm. G. Wilson and Geo. Gardner for appellee. For this reason the complaint was bad, as well as for the farther reason, that there is no special averment of notice, to the guarantor, of the non-payment of the rent, or any excuse shown for the failure to give such notice, or aver it. This notice, we think, should have been given in a reasonable time after the breach of the undertaking, unless facts existed which dispensed with it. Smith v. Bainbridge, 6 Blackf. 12; 1 Par. on Con. 514; 2 id. 174. Per Ouriam. The judgment is reversed, with costs. Cause remanded, &c.