28 N.C. 380 | N.C. | 1846
The plaintiff, on 23 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 29 July, 1842. The plaintiff gave notice (381) to the defendant on 29 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: that the plaintiff had been guilty. of laches and the defendant was discharged from his guarantee. Having pronounced judgment accordingly, the plaintiff appealed.
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 Mercantile Law, 277. The judge was of opinion that thelaches 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 Shammell's representatives for more than fifteen months after he had *275
received them. Nor did he give notice to the defendant of his inability to get the money out of Shammell's estate until February, 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,
PER CURIAM. Affirmed.
Cited: Straus v. Beardsley,
(382)
