Metz v. Corl's Estate

Clark, J. On January 6, 1903, plaintiff received a certificate for 100 shares of preferred stock, par value of $100 each, of Corl, Knott & Company. A guaranty of payment of principal and dividends was indorsed on the certificate. From time to time shares were redeemed and new certificates issued to plaintiff until finally on August 15, 1907, plaintiff received a certificate for 60 shares of said preferred stock, of the same par value, which certificate provided: “The company shall call and redeem the preferred stock represented by this certificate, on the first day of February, 1915, by paying to the holder thereof its par value and all accumulated dividends thereon.” And on which certificate a like guaranty was indorsed as follows: “For value received I hereby guarantee payment of the dividends and principal of within stock. Should the holder thereof desire to continue said stock beyond the' maturity therein stated, he or she shall give notice to that effect at least sixty days prior to maturity to the undersigned. “Samuel S. Corl, “Heber A. Knott.” [511] Dividends on such stock were paid and were received by plaintiff semi-annually to and including August 1, 1916, but not afterward. The company did not redeem the stock. Prior to February 1, 1915, and prior to December 16, 1916, no demand that it redeem was made by plaintiff upon the company. No notice was given by plaintiff or anyone in her behalf to the guarantors or either of them prior to February 1,1915, nor prior to December 16, 1916, that there had been no redemption or that plaintiff desired to continue the stock beyond maturity. The company failed. Its affairs were wound up. Plaintiff has received nothing upon her stock since August, 1916. No demand for payment under the guaranty was made upon Corl during his lifetime. A claim upon the guaranty was filed against the estate of Corl in the probate court for Wayne county and was disallowed September 13, 1920. The cause was appealed. There was judgment for the estate which plaintiff reviews on error. The trial judge said in an opinion filed: “Guarantors have the right to impose any conditions or restrictions upon their guaranty that they see fit. Samuel S. Corl and Heber A. Knott guaranteed the payment of this stock to the claimant at maturity and that is all they did do. They did not unconditionally forever guarantee the payment of the principal of this stock, as they would have done if they had stopped at the end of the first sentence, but they go on and make this guaranty conditional, if the holder should desire to keep the stock beyond the maturity date, by providing that she shall give them sixty days’ notice. That was inserted for the very purpose of limiting their guaranty. * * * “On account of this great length of time beyond the maturity date of the stock before plaintiff took any steps to collect either from the company or from the guarantors, the question of laches might be one to be considered if this was an unconditional guaranty. It is my opinion, however, that this guaranty was con [512] ditional and limited as to time and only ran until the maturity date of the stock. When the claimant did not give the sixty days’ notice provided for, and elected to hold and retain the stock beyond the maturity date, she, by that action of hers, released the guarantors from any further liability and elected to look to the company * * * for the payment of the stock.” Plaintiff contends that the condition of the guaranty is of no importance and should be held to be of no avail to defendant. But we think the rule as to that is well stated in 20 Cyc. p. 1447, under the subject of guaranty: “The court will not dispense with that which the parties have.agreed upon, or declare that to be immaterial which they have thought of sufficient importance to condition their contract upon.” * * * Nor do we find a waiver of the condition by the guarantors. We think the quoted opinion of the circuit judge is sustained by the weight of authority. See 20 Cyc. pp. 1438, 1472; 1 Brandt on Suretyship and Guaranty (3d Ed.), § 106; Columbus Sewer Pipe Co. v. Ganser, 58 Mich. 385 (55 Am. Rep. 697); Gard v. Stevens, 12 Mich. 292 (86 Am. Dec. 52); Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112 (67 Am. St. Rep. 389); Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273 (45 Am. Rep. 204); Locke v. McVean, 33 Mich. 473, 479; Mathews v. Garman, 110 Mich. 559, 560; Morris & Co. v. Lucker, 158 Mich. 518, 520; Schoonover v. Osborne, 108 Iowa, 453 (79 N. W. 263); Schwab v. Bridge, 27 Cal. App. 204 (149 Pac. 603). Judgment affirmed. Wiest, Bird, and Sharpe, JJ., concurred with Clark, J.