We think the rule for a new trial ought to be discharged, and that for the reasons given by the Judge in his charge to the Jury, which it is unnecessary here to repeat.
Towns & Co. v. Farrar, 9 N.C. 163, 2 Hawks 163 (1822)
Dec. 1822
·
Supreme Court of North Carolina
9 N.C. 163, 2 Hawks 163
Towns & Co. v. Farrar.
From Chatham.
1. being' indebted to 1?, assigned to him certain judgments against »•-, ou which execution was slajed by IX as the security of C, amt A. guaranteed the payment of the judgments to ib fie fore the assign meat of the judgments, and before the stay of execution had expired, C. removed from the State with his property, and had, at the time of tria!, sufficient property to satisfy the judgments. The so - curily 1). had become insolvent. Raid, that B. was not bound t;> pursue C. when beyond the limits of the oíate, before he could l»a\e recourse to A.
In general, a guarantee is not bound to die Siighest possible degree ol ; diligence; but it is sufficient if he resort "to such means, as are within i his power, in such time as a prudent and discreet man u mild, in like circumstances, to collect his own debí : and if in usmg such diligence he fails to obtain satisfaction of the principal, he is entitled to resort to the guarantor.
Tliis was an action of assumpsit, on a contract of guaranty, tried in Chatham Superior Court, at Fall Term, 1822, before Jtadger, Judge.
*164The Defendant Farrar, residing in Chatham county, indebted by note to the Plaintiffs, merchants of Fayetteville, on the 15th of February, 1320, in discharge of the debt assigned to the Plaintiffs, (acting by their agent Thomas C. Hooper,) sundry judgments obtained by Defendant before a Justice, of the Peace, against Herndon Haralson, having execution stayed thereon on the surety of A. D. Murphey | and on the same day executed to the Plaintiffs a writing by which he contracted to guarantee the payment of the judgments, on which contract the action was brought. These were accepted by Plaintiffs in satisfaction of the original debt. Before the' assignment of the judgments, and before the stay of execution had expired, Haralson, the principal in the judgments, removed out of the State, carrying with him his property, which was more than sufficient to satisfy the judgments, and has continued since, in parts out of the State, and in solvent circumstances. The judgment and executions were placed by Hooper, at the request of the Defendant, in the hands of one Lightfoot, and the Defendant offered to shew Lightfoot property belonging to the surety Murphey, on which he might levy,- but Lightfoot declined levying, alleging that the surety had promised to pay the money, and that the Defendant need not trouble himself, as he (Lightfoot) would take the responsibility on himself, and exonerate the Defendant. Of this transaction between Lightfoot and the Defendant, no notice was given to Plaintiffs or their agent. The Defendant afterwards requested the agent to place the papers in the hands of one Crump, a constable, stating as a reason for the request, that Lightfoot did not exert himself to collect the money. This was done, and though Crump repeatedly applied to the Defendant to shew him property belonging to the surety, the Defendant failed to do so. In the mean time, the surety met with losses which rendered him entirely unable to satisfy the judgments, or any part thereof.
*165In every instance relative to the judgments assigned, the agent asked and acted under the advice of the Defendant, and always urged the collection of the judgments.
It was insisted on the trial below, that the Defendant was entitled to a verdict on one or all-of the following grounds.
1st. That tsie negligence and other conduct of Light-foot, who was to this matter the Plaintiffs’ agent, had discharged the Defendant.
3d. That Haralson, the principal, was now solvent, and the money should have been collected out of him, or proper efforts used therefor, before the Defendant could be charged.
Sd. 'Phut the Plaintiffs had, under the circumstances he-lero. stated, been guilty of such negligence as exonerated the Defendant.
The Judge instructed the Jury, that Lightfoot, under the circumstances disclosed (supposing them true) was not such an agent of the Plaintiffs’ as had power to give a discharge to the Defendant, and that therefore, neither the neglect of Lightfoot to levy, nor v;hat passed between him :■ * the Defendant could, unless known, approved, adopted, or in some way countenanced by the Plaintiffs or their agent, release Farrar from his liability.
Tiie Court further instructed the Jury, that the Plaintiffs wore not bound, under the circumstances above stated, before having recourse to the Defendant, to pursue Haralson when beyond the limits of the State, and ¿hat therefore, the fact of Haralson’s being in possession of sufficient estate where he resided, was, in this case, no sufficient answer to the Plaintiffs’ claim. And the Court further instructed the Jury, that in general, a guarantee was not hound to the highest possible degree of diligence, but it was sufficient, if he resorted to such means as were within his power, in such time as a prudent and discreet man would, in like circumstances, to collect his *166¡own debt,' and if, using such diligence, he failed to obtain satisfaction of the principal, lie would be entitled to resort to the guarantor,. And that in this particular case, if the Jury believed from the evidence, that immediately after the assignment, the judgment with executions were placed in the hands of Lig-htfoot, at the request of the Defendant, who undertook to shew property to satisfy them ,* that subsequently, at the like request, they were given to another officer designated by Dtfon-dant, to whom also, be engaged to shew property ; and that the Defendant living within the county of Chatham, where neither Plaintiffs or their agent resided, liad the direction of tho claim; that tho Plaintiffs and their agent were ignorant of the conduct of Lightfoot, and did not either authorise or adopt it; that no interference took place on the part of tho Plaintiffs by authorising delay or otherwise, and that the Defendant failed to shew property to the second officer designated by him, Crump j then the Defendant was not discharged, - and the Jury should find for the Plaintiffs, unless it appeared to the Jury that the Plaintiffs or their agent had possessed some opportunity or means of receiving- the debt, of which they had neglected to avail themselves. fe
The Jury found a verdict for the Plaintiffs, on which judgment being rendered, the Defendant appealed to this Court.