Goodwin v. Buckman

Wright, J. We have no argument on the part of the appellee; and are not advised of the grounds upon which the evidence offered was rejected. It is only stated in the bill of exceptions, as to a portion of the testimony, that it was objected to as incompetent, and that the matters claimed could not be proved by parol. The defendant is not a guarantor within the meaning of sections 953,-’54-’55 of the Code. His liability is not upon a blank indorsement, but arises from and is based upon his special undertaking. Treated as a conditional promise, the guarantor, as a general rule, is bound only in the event that the holder shall use diligence to collect from the maker. But that the use of this diligence may be waived by the guarantor, we have no doubt. And if at his'instance and request and upon the faith of his promise the diligence is not used, 310 he is liable. It may be admitted that a parol agreement, made at the time of the guaranty, to waive the use of diligence, would not be admissible, because of its eonQict with the written agreement. And there are cases holding that if the party guaranteed fails to perform the condition precedent, (the use of diligence,) so that in fact no obligation becomes perfect against the guarantor, a subsequent promise to pay will not render him liable. And the rule, according to the authorities, is based upon the doctrine that it is a new undertaking without a consideration to support it. (Edwards on Bills, 237, Vanderver v. Wright, 6 Barb. 547.) In this case, however, the proof offered in no sense contradicted the written guaranty, any more than proof of the waiver of laches in the ease of an ordinary indorsement of negotiable paper. Nor was it offered to prove a promise, subsequent to the failure to perform the precedent condition. We understand the purpose of the offered testimony to have been to show an exeuse for not using the diligence required of the holder. For this purpose we think it was admissible, for it was entirely competent for the guarantor, by parol, to release the holder from this legal duty. And if in consequence of this request and waiver by the guarantor, he failed to use diligence, we see no reason why he may not recover. Judgment reversed.