19 Johns. 69 | N.Y. Sup. Ct. | 1821
delivered the opinion of the Court. The .first inquiry is, whether the defendant’s liability under his engagement, that the note was good and collectable, after due course of law, did not depend on a condition precedent, to be performed by the plaintiff, the use of due diligence in attempting to collect the note by legal prosecution. It does not admit of a doubt, that the defendant, who is a mere guarantee, can only be made responsible by the plaintiff’s showing a pérformance, on his part, of the condition, on the observance of which the defendant consented to be answerable for the amount of the note. The defendant’s undertaking, that the note was good and collectable, after due course of law, imposed a necessity upon the plaintiff, if he meant to resort to his guaranty, to prosecute, with due diligence, all the parties to the note. The guaranty extends as well to the maker of the note as to the endorsers. The plaintiff accepted the note with the several and respective liabilities of the maker and endorsers; and his title to demand of the defendant the performance of the guaranty, depends on his showing, either that he has, with reasonable vigilance, pursued a due course of law, that is, commenced and prosecuted suits to effect, against all the parties to the note, and has thus ascertained, that the note was not good and collectable, or he must set forth a legal excuse for omitting to do so. There is no averment, that a suit has been prosecuted against Hull, the maker of the note, and the I excuse is, that he was discharged from all his debts by a commissioner, pursuant to the statute, on the 15th of March, 1819. Though the act of God, or the act of the law which renders the performance of an act stipulated to be done, unlawful, may excuse a party from a strict compliance with his contract, as matter of defence, it may well be doubted, whether an engagement by one to perform an act,
Judgment for the defendant, with leave to the plaintiff to amend, on payment of costs.