Purdy v. Maree

[126]

McCOMB, J.

From a judgment sustaining a demurrer to plaintiff’s complaint without leave to amend, plaintiff appeals.

The essential facts alleged in the complaint are:

(1) On April 2, 1928, at Birmingham, Michigan, for the purpose of inducing the bank of which plaintiff is receiver to extend credit to Murphy, Kosborough and Maree, Inc., a corporation, defendant executed an agreement, which was substantially as follows:

Defendant, E. H. Murphy and A. J. Kosborough, in consideration of the extension of credit by the bank of which plaintiff is receiver to Murphy, Kosborough and Maree, Inc., jointly and severally guaranteed the payment to the bank of any indebtedness of Murphy, Kosborough and Maree, Inc., that remained unpaid, and that they would remain liable for any money loaned directly to the corporation by the bank to the amount of $7,500, and would be liable to the bank for a sum not exceeding $5,000 upon credit extended by the bank to the corporation as an endorser or guarantor of the obligations of others, together with interest thereon, whether the indebtedness of the corporation to the bank arose upon notes, acceptances, drafts, renewals, endorsements or other obligations. They further waived notice of the acceptance of the guaranty and of any and all indebtedness at any time covered by the same and of demand and notice of protest on all notes and other obligations representing any indebtedness.

(2) Thereafter the bank loaned money to said corporation aggregating the sum of $7,595, and prior to the time the statute of limitations had run (April 23, 1937) payment was made on the notes by the corporation.

These are the questions to be determined:

First: Will payments by a principal obligor toll the statute of limitations as to his guarantor in a suit by the obligee upon the contract of guarmty against the guarantor, in the absence of a provision in the contract of guaranty that the statute of limitations is to be tolled as to the guarantor by such payments?

Second: Did the part payment by the principal obligor on its obligation prior to the time the statute of limitations had run upon the same create a new obligation for which the