65 So. 52 | Ala. | 1914
When the parties formulated the contract exhibited to counts 1 and 2 of the complaint, most likely they had not in mind the distinction between suretyship and guaranty which the courts generally have observed. This appears from the fact that, while in the body of the contract sued upon defendant Love-lady and another undertake to “guarantee” the performance of his agrément by Davidson, the principal obligor, at the bottom of the contract, which evidently had been prepared by the obligee medical company, and was intended for signature by, and was in fact signed by, those parties only who.would answer for Davidson’s
Contracts of suretyship and of guaranty have much in common — in both the undertaking is to answer for the debt, default, or miscarriage of another. The difference is that a surety insures the debt, is bound with his principal as an original promisor, is a debtor from the beginning; a guarantor answers for the debtor’s solvency, must malee good the consequences of his principal’s failure to pay or perform, is bound only in case his principal is unable to pay or perform. To this effect is Saint v. Wheeler Mfg. Co., 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210; 20 Cyc. 1400. From this difference, one consequence of importance in respect of the procedure to be followed in the enforcement of liability flows: “A principal and a surety, being equally bound, may 'be joined in the same suit; but a guarantor, being bound by a separate contract, must be sued separately.”—14 Am. & Eng. Encyc. (2d Ed.) 1130.
This case requires that the obligation of Lovelady be defined as either that of a surety or a guarantor. The result in this case is to be determined, as matter of law, from the language of the contract, though, as matter of fact, the parties may not have considered the difference, for there is nothing else to disclose the intention of the parties. They must be held to the legal intendment of the language they employed. As we have seen, Lovelady guaranteed Davidson’s undertaking in' the only language of obligation he employed, and this he did in a separate contract. The separation of the contracts indexed the intention of the parties to make an engagement of guaranty, as well as the term used. These are the principal factors of interpretation, since they arise out of the body and substance of the contract. They must therefore have a controlling influence in de
Affirmed.