Whiting v. Clark
Before: Baldwin
Synopsis
A creditor, having legally fixed the liability of a guarantor, is not bound to sue the debtor in order to hold the guarantor—at least, not until requested by the guarantor. The guarantor, if he wish to protect himself from loss, should pay the debt, and then sue the principal, or file a bill to compel the creditor to sue.
Where plaintiff claimed on a written guaranty by defendant for goods sold and delivered, and charged to one P., and defendant plead that no suit had been brought by plaintiff against P., and that the Statute of Limitations of one year had barred the claim as against P.: Held, that the statute is no defense; that by the guaranty defendant became the debtor of plaintiff; and that no limitation could defeat the action, except that prescribed for the class of indebtedness evidenced by the written guaranty.
Where interest was improperly allowed on a running account, but no objection taken for that reason to the judgment or finding of the referee : Held, that the judgment will not be reversed.
Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.
This suit is brought on a guaranty by defendant of a debt of or [411]for one Porter. The only thing set up in defense which it is necessary to notice is, the plea that no suit has been brought to charge the original debtor, and that the Statute of Limitations bars the claim as to him. But this is no defense. After legally charging the defendant, the plaintiff was not bound to sue the principal; at least, unless requested by the guarantor; and the surety had in his own hands the means of protecting himself from loss by delay, by paying the debt and then suing the principal, or by filing a bill to compel the creditor to sue. By the guaranty the defendant became the debtor of the creditor, and no other limitation could defeat the claim than that prescribed by law for the class of indebtedness evidenced by the paper.
Probably the charge of fifty-six dollars for interest is erroneous; but this matter should have been brought distinctly to the notice of the referee, and objection taken to the judgment and finding on this account.
Judgment affirmed.
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