Schwab v. Bridge

KERRIGAN, J.

This is an action to recover upon a guaranty. The circumstances under which the contract was entered into are as follows: W. W. Foote, Jr., had inherited certain sums of money from the estate of his father, which money was held in trust and was to become due on December 7, 1905. While so held W. W. Foote assigned the funds to the defendant Henry S. Bridge, defendant herein, as security for advances made and to be made by Bridge to Foote. The Pacific Central Electric Co., of which Foote was the principal stockholder, became indebted to the John M. Klein Electric Co., and to secure this indebtedness Foote requested Bridge to guarantee the account. In pursuance of this request Bridge signed the following guaranty:

“I will guarantee the account of Pacific Central Electric Company to the amount of $1,500—provided the amount may be due and presented to me by December 3, 1905. This guaranty in place of a former one of $1,000—in other words, my guaranty is not to exceed $1,500. ’ ’

(“Signed) Henry S. Bridge.”

A considerable portion of the indebtedness for which the guaranty was given was not paid; and on October 31, 1907, the contract of guaranty was assigned to Edwin Schwab,

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who brought this action to recover judgment for the sum of one thousand five hundred dollars, with interest from the fourth day of December, 1905.

In defense of the action it was the claim of defendant in the court below that the contract of guaranty sued upon was a conditional one, dependent upon presentation of a demand, and that such presentation and demand be made within the time limited in the proviso of the guaranty; and further, that the time of performance being part of a condition precedent, time was of the essence of the guaranty; and as the demand was not made until after the time specified no liability accrued upon the contract.

Plaintiff, on the other hand, insisted that not only was the proviso relied upon as a defense not made a condition precedent by its terms, but that the time therein set forth was not made expressly of the essence of the contract, nor was it to be implied therefrom.