Beeker v. Saunders, 28 N.C. 380, 6 Ired. 380 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 380, 6 Ired. 380

PHILIP BEEKER vs. JOHN SAUNDERS.

A., on the 21st of August 1841, transferred to B. certain promissory notes of C., which he at the time guaranteed. B. made no application to C. for the payment of the notes until the 29th of July 1842, and gave no notice to A. that the notes were unpaid, and he should hold him responsible on his guaranty, until the 29th of February 1844. Meld, that B. had been guilty of such laches as to discharge A. from his guaranty.'

The cases of Towns v. Farrar, 2 Hawks 163, and Grice v. Ricks, 3 Dev. 62, cited and approved.

Appeal from the Superior Court of Law of Davidson County, at the Spring Term, 1846, His Honor Judge Settle presiding.

The plaintiff, on the 23d day of April, 1841, received of the defendant, for bacon sold him, two notes then due on Alexander Shammell. The defendant guaranteed the notes to be good, and Shammell’s estate was then considered to be good. The plaintiff did not, however, demand the money, due on the notes, until the 29 th day of July,

1842. The plaintiff gave notice to the defendant, on the 29th day of February, 1844, that he was looked to for the money. The defendant refused to pay: and the plaintiff brought this action of assumpsit upon the said guaranty. The jury found these facts in a special verdict, referring the questions of law, to the Court. The Judge was of opinion, on the facts found in the special verdict, that the plaintiff had been guilty of laches and the defendant was discharged from his guarantee. Having pronounced judgment accordingly, the plaintiff appealed.

Mendenhall, for thé plaintiff.

No counsel for the defendant in this Court.

Daniel, J.

A guaranty, is a promise to answer for the payment of some debt or the performance of some duty, in case of the failure of another person, who is himself, in the first instance, liable to such payment or performance, Fell on Guar. 1, Smith on Mercantile Law, 277. The Judge was of opinion, that the laches of the plaintiff had discharged the defendant. And we concur with his Honor. It does not appear in the verdict, that the plaintiff ever demanded the money, due on the notes of Sham-mell’s representatives, for more than fifteen months after he had received them. Nor did he give notice to the defendant, of his inability to get the money out of Sham-mell’s estate, until Feb. 1844, almost three years after he had received the notes upon the guaranty; and when the law demanded of him, to resort to a reasonable degree of diligence, and that too in such time as a prudent and discreet man would in like circumstances use,to collect his own debts. And if he then fail to obtain satisfaction of his principal, he is entitled to resort to his guarantor, on his first giving him notice in a reasonable time, that he is looked to for payment of his guaranty, Towns v. Farrar, 2 Hawks 163, Grice v. Ricks, 3 Dev. Rep. 62. The judgment must he affirmed.

Pek Curiam. Judgment affirmed.