25 Pa. 210 | Pa. | 1855
The opinion of the Court was delivered by
Only one of the thirteen assignments of error contains the specification required by the 7th and 8th rules, adopted on the 6th September, 1852, and published in 6 Harris 577. “ When the error assigned is to the charge of the Court, the part of the charge referred to must be quoted totidem verbis in the specification;” and, “ when the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the bill of exception, or copy the bill in immediate connexion with the specification.” “Any assignment of error not according to these rules will be held the same as none.” Under these rules it has repeatedly been held that when the error assigned is to the answer to a point, the point and the answer complained of must be quoted in the specification. An assignment which merely declares that “the Court erred in not answering the party’s point as put,” or “ erred in answering” it, is not a compliance with the rule. The ten first assignments are defective in the particulars last mentioned, and the I2th and 13th, relating to the admission of evidence, contain neither the copy nor the substance of the bills of exceptions on which they purport to be founded. We have looked in vain over the whole evidence for them, and have not been able to find them. The only specification within the rule is the 11th, and we proceed to notice it.
The action is upon a guaranty of the claim which Brown had against Strader, under an agreement of the 4th of August, 1849, by which the latter was bound to deliver three 17 inch rafts, at the mouth of Mahoning Creek, by the first freshet in the next spring, in good order, considered 1000 feet in each raft. The evidence shows that the spring freshet referred to, occurred about the last of February, or first of March, 1850. An action on the agreement was brought against Strader on the 20th March, 1850, and judgment was obtained on the 20th August, 1850.' On the 16th September, 1850, a fi.fa. was issued, by virtue of which a levy was made on the real estate, subject to a prior levy in favour of W. & R. McCutcheon v. Strader et al. This levy was disposed of by a sale on a venditioni exponas in favour of W. & R. McCutcheon, on the 10th December, 1850,' for a sum insuffi
The judgment is, for these reasons, to be affirmed. But some ■remarks may be added in reference to the questions referred to in the defective assignments of error.
A guaranty is an engagement to pay in default of solvency in the debtor, provided due diligence be used to obtain payment from him: Johnson v. Chapman, 3 Penn. Rep. 18; Isett v. Hoge, 2 Watts 128; Rudy v. Wolf, 16 Ser. & R. 81. The contract of a guarantor differs from that of an endorser. In the latter case the engagement is to pay, if the maker does hot, upon demand,' after due notice: 8 Wendell 421. Something more than demand and notice of non-payment is required to support an action on a guaranty. The contract for due diligence requires that a suit be brought within a reasonable time after the maturity of the claim, and be duly prosecuted to judgment and execution, before an action can be sustained against the guarantor, unless in cases where it is shown that such a proceeding could have produced no beneficial result. Where the principal debtor' is insolvent at the maturity of the debt, no such proceeding is necessary as a founda tion to an action on the guaranty. Nor is it necessary, in such
It is a general rule, that, if the words used in a contract be technical, or local, or generic, or indefinite, or equivocal, on the face of the instrument, or made so by proof of extrinsic circumstances, parol evidence is admissible to explain by usage their meaning in the giyen case: 6 Taunt. 445 ; 7 Wend. 270 ; 8 Wend. 160; 7 Cowen 202; 7 Johns. 385; 13 Meeson & Welsby 511. The evidence admitted to determine whether the “1000 feet in each raft” was intended to be linear measure, or otherwise, was properly received in conformity to this rale.
Judgment affirmed.