Parker v. Culvertson

GRIER, Circuit Justice. The decision of the point here raised depends upon the effect of the contract declared on, according to the laws of Pennsylvania, the place of the contract. The covenants, when taken into connection with the recitals in the instruments, show that it is not an original contract of surety-ship, nor, like the guaranty of a promissory note, a contract to pay on a given day if the principal does not; but one of a secondary or ancillary sort; for a new consideration, guarantying the sufficiency of certain securities held by the plaintiff, and their ultimate payment. Being thus collateral and conditional, it requires, in its essence, that the plaintiff should exhaust his remedies against the other partiés before he comes upon the defendant The word used, it may be remarked, is “guaranty”; a word which in its enlarged sense, says Chancellor Kent (Comm. vol. 3, p. 121), “is a promise to answer for the payment of some debt, or the performance of some duty, in the case of the failure of another party who in the first instance is liable.” The duties and liabilities consequent upon such a contract, are settled in Pennsylvania, as will be seen by reference to the cases cited on the argument, particularly by that of Johnston v. Chapman, 3 Pen. & W. 18, where the words>of the contract much resemble those in the engagement before us. No case, so far as I am aware, has ever overruled this decision. It follows then that the plaintiff must aver in his declaration, and of course must prove on the trial, that he had used due diligence to enforce payment of both the bond and mortgage assigned to him by Wharton; or that Wharton was in such a situation — call it what you wiL — ■that further pursuit would have been fruitless. For want of this the declaration is fatally defective and judgment must go against the plaintiff, who committed the first error, and, in this case, shows no cause of action.