Smith v. Compton

Where one person guarantees the payment of the debt of another, in consideration of the agreement of the creditor to stay proceedings against the debtor, the promise of the creditor is a condition precedent, and its performance must be proved to entitle him to a judgment against the guarantor. Where a motion for a non-suit was improperly denied, but the defendant then introduced testimony enabling the plaintiff to supply the defect in his case, JSeld that defendant thereby waived the objection.

Appeal from the Superior Court of the City of San Francisco. The plaintiff brought his action on a tripartite agreement (not under seal) dated Nov. 22, 1853, between Wm. A. Richardson of the first part, Chas. S. Compton and D. Davidson (the defendants) of the second part, and Wm. Smith (the plaintiff) of the third part; which recites that Smith had recovered a judgment for §3,913, besides costs, the whole bearing interest, against Richardson, under which he had levied on property of Richardson in Marin County; and contains the following agreements : Richardson agrees that the interest shall be compounded, and bear interest with the principal. Compton and Davidson agree that the property levied on shall not be removed, and shall remain subject to the levy, and also guarantee the payment of the judgment and costs. Smith agrees to suspend all proceedings under the judgment for four months, and to assign the judgment, on a week's notice, to Compton and Davidson, on their paying him the amount due at any time previous to the expiration of the four months. A payment of §300 on account of the judgment in Smith v. Richardson, was admitted. The performance by plaintiff of his portion of the contract is put in special issue by the pleadings. On the trial of the cause, the defendants introduced the contract in evidence, and then rested his case. The defendants then moved for a non-suit, upon the ground, among others, that the plaintiff had not proved a compliance with his agreement to suspend proceedings. The motion for a non-suit was overruled, and the plaintiff then introduced testimony to the effect that the levy was made on Richardson's property under plaintiff's judgment, on Nov. 10, 1853, and a portion •of the property sold under the orders of plaintiff, March 6, 1854, the remainder being claimed by other parties and found to be their property by a sheriff's jury. The plaintiff then proved that the defendants assented to the sale being made prior to the expiration of the four months, and actively assisted therein, and the jury so found under the instructions of the Court. The Court instructed the jury if they found for the plaintiff, to give a verdict for the amount of the judgment against Richardson, less the amount paid, with simple interest at three per cent. The jury found a verdict for plaintiff for §3,912 55. Judgment accordingly. Defendants moved for a new trial, which was denied by the Court, and defendants appealed.