Whiting v. Clark

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.

Appeal from the Fourth District. Suit commenced by Whiting, Goodman & Co., Aug. 26th, 1859, on the following written guaranty : “ San Francisco, Dec. 19th, 1859. “ For a valuable consideration, I hereby guaranty the payment for any goods which Whiting, Goodman & Co. shall deliver to George S. Porter, or his order, on and after this date. , (Signed.) “ G. W. Clark.” The complaint avers, that plaintiffs gave defendant notice that they accepted the guaranty; and afterwards, relying on it, between its date and June 1st, 1858, sold and delivered to Porter goods amounting to seven hundred and ninety-five dollars and fifty cents, and notified defendant thereof at the time of the sales; and that on the seventeenth September, 1858, there was a balance due of three hundred and ninety-five dollars and fifty cents, for payment of which demand was then made of Porter and refused; that defendant was on the same day notified of such refusal, and demand made on him for payment; and that Aug. 1st, 1859, plaintiffs presented defendant an account of said balance, and demanded payment, etc. Prayer for five hundred dollars damages, and costs. The answer admits knowledge of the sales up to April 20th, 1858, but denies that defendant was ever notified of any sales after that date; or that he was notified of any demand on Porter, or of the time when his account was due, until August, 1859. It also sets up that the goods sold to Porter were charged to him in a book account, and that he, Porter, is indebted on this book account only; that plaintiffs have failed to sue him for the amount; and that the cause of action against Porter has accrued more than one year before the commencement of this suit, and is barred. The case was tried before the Court, and the allegations of the complaint were substantially found true. The account on plaintiffs’ books was against Porter. Judgment for plaintiffs for three hundred and ninety-five dollars and fifty cents, with ten per cent, interest from Sept. 1st, 1858, in all four hundred and fifty-two dollars and twenty-nine cents. Defendant moved for a new trial, on the ground that the finding is not justified by the evidence, and is against law. Overruled. Defendant appeals.