59 N.W. 967 | N.D. | 1894
This action is upon a guaranty indorsed by the defendants upon three'promissory notes, before said notes were delivered to the plaintiff by the makers thereof. The guaranty indorsed upon each note is as follows: “For value received, we hereby guaranty the collection of the within note. Laughlin, Palmer & Co.” The notes were executed and delivered to the plaintiff by one G. W. Curtiss and one C. M. Stewart, and were given for the purchase price of a threshing outfit. The notes were secured by a chattel mortgage upon the threshing outfit, and upon two horses. ' So far as appears in this record, no action was ever instituted on either of the notes against the makers, or against either of them; and no attempt was ever made to foreclose said chattel mortgage. All the notes bore date upon the 27th day of August, 1883, and matured as follows-: One, for $109.50, fell due December 1, 1884; one for $250, fell due December 1, 1883; and one, for $210 fell due December 1, 1885. The complaint alleges that said notes are wholly unpaid, except that $113.90 was paid January 10, 1885, on the note first coming due. The complaint also avers that the notes were not paid at maturity, and that plaintiff gave notice of the nonpayment to defendants, and demanded payment of defendants, which was refused, and “that at the time of the execution and delivery of said notes, and of said guaranty, said Curtiss and Stewart were, and ever since that time have been, insolvent; and in' or about the month of January, 1885, said Stewart removed from Dakota Territory, leaving no property therein from which said obligations could be satisfied.” The answer, besides a general denial, admits
There was a jury trial. Defendant offered no evidence. The undisputed testimony offered in plaintiff’s behalf established the following state of facts: Plaintiff recovered judgment against Curtiss and Poor, on the collateral notes in an action instituted in August, 1887; execution issued in 1889 on this judgment, and was returned nulla bona. Plaintiff in 1888 foreclosed the chattel mortgage given to secure the collateral notes, and sold the separator, horse-power, and three mares. The net proceeds of the foreclosure were $55. One Angel, acting for the plaintiff, visited Marshal County, Dak. T., early in January, 1885, where Curtiss then resided, and where Stewart had lived before leaving the territory. Angel, by suitable inquiries, ascertained that Stewart left the territory in the fall of 1884, leaving no property behind him, and that Curtiss besides the property covered by the chattel mortgagé had only one team, and had no property
The only error of law assigned in this court which we deem is necessary to notice is the claim that it was error in the trial court to withdraw the note falling due December i, 1883, from the consideration of the jury, and to instruct them to find for the defendants upon that note. Plaintiffs also except to the verdict as not justified by the evidence, and specify that the evidence shows that the original debtors were insolvent when the original notes matured, and continued so to be until the trial, and also that the evidence shows due diligence on plaintiff’s part to collect the note from the original debtors. In passing upon the assignments of error, it becomes necessary to consider the nature and extent of the obligation assumed by the defendants by their guaranty of the “collection” of the notes in suit. For this purpose we may safely have recourse to certain provisions of the Civil Code. Section 4280, Comp. Laws, reads: “A guaranty, to the effect that an obligation is good, or is collectible, imports that the debtor is solvent and that the demand is collectible by the usual legal proceedings, if taken with reasonable diligence.” Section 4281 reads: “A guarantee such as is mentioned in the last section is not discharged by an omission to take proceedings upon the principal debt or upon any collateral security for its payment, if no part of the debt could have been collected thereby.” Section 4282 reads: “In the cases mentioned in § 4280 the removal of the principal from the territory, having no property therein, from which the obligation might be satisfied, is
Taking up the assignments of error in the order above set out, the first question to be settled is whether the evidence embodied in the record shows, with respect to the note withdrawn from the consideration of the jury, that any of the conditions ever existed which would render the defendants liable upon their undertaking of guaranty. It is not contended that there is any evidence tending in the least to show that the orginal debtors (Curtiss and Stewart,) or either of them, were insolvent at the time the guaranty was signed. The complaint, however, expressly charges “that at the time of the execution and delivery of said note, and of said guaranty, said Curtiss and Stewart were, and ever since that time have been, insolvent.” The allegation of the insolvency of the original debtors at the time the guaranty was entered into not being sustained by evidence, it follows that the first condition of the defendants’ liability never came into existence. It is equally clear from the record that the plaintiff has wholly failed to show by testimony that the original debtors were insolvent at the time the first note came due, or for nearly one year thereafter. No evidence was offered relating to the solvency or insolvency of either Curtiss or Stewart, other than that directed to a date nearly one year after the first note matured, viz. until the fall of 1884. It appears that Stewart left the territory in the fall of 1884, and left no property within the territory. But, conceding that Stewart (under § 4282, supra,) became insolvent in the fall of 1884, there is yet a total failure of proof showing that either Stewart or Curtiss was insolvent prior to that time. The consequence is
The second assignment of error, i. e. that which asserts that the verdict was not justified by the evidence, must also, upon the grounds and authorities above stated, be overruled. The time of payment of the original series of notes not having been extended, it follows that the creditor (the plaintiff) at all times after December 1, 1883, was in a position to foi'eclose the mortgage given to secux'e the notes in suit. This was not done at any time. If it wex’e conceded — and it is not — that an action bi'ought against the debtoi-s would have" been fruitless by reason of the insolvency of the debtors, such fact does not excuse the laches involved in the nonforeclosure of the fix'st mortgage. Neither is thex-e any excuse offered in the evidence for the long delay which occurred in foreclosing the mox'tgage given to secure the collateral series of notes. Two of that series of notes matui'ed in the year 1885, and no foreclosure was made until 1888. Plaintiff’s evidence stood alone, and was clear and uncontroverted. It was of a character to demonstrate that the plaintiff had wholly failed to make out a case as against the guarantors. Upon such a state of facts, defendants’ motion, made at the close of the evidence, to instruct the jury to find for the defendants upon all of the issues, might well have been gx-anted in its entix-ety. The failux-e of the court to do so, however-, was, as to the second and third notes, a x-uling in plaintiff’s favor. The evidence fully justified the verdict.
Finding no error in the record, the judgment is affirmed.