Tissue v. Hanna
27 A. 1104
Pa.
1893
Check Treatment

Opinion by

Mr. Justice Green,

Thе learned court below left to the jury the question whether due diligence was used by the plaintiff in endeavoring to collect the note in controversy from the maker. The note was past due for seven months when it was received from the defendant who guaranteed its payment at that time. There was an interval of four months within which the note could probably have been collеcted from the maker if judgment had been entered on it and execution issued. The maker was then engaged in business 'as a merchаnt, and had a considerable ‍‌​​‌‌​‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌​​‌​‌‌​‌​​‌‌​​‍stock of goods out of which the money could have been collected by ■ execution, though the maker of the note was in reality insolvent when the note was transferred to the plaintiff by the defendant, who was his guardian. Thе real estate of the maker was incumbered by liens for more than it was worth during the whole of the time,‘and nothing could have beеn collected from it. In considering the question of due diligence on the part of the plaintiff, it must be remembéred that his guardian, the defendant, induced *388him to take the note by guaranteeing its payment, and that it was then seven months past due, and the defendant assurеd him that if he would demand payment of the note he would get it. The maker of the note lived in another county, thirty-five miles distant, was known to the plaintiff, and was actively engaged in business, and was in the visible possession of real and personal estate worth many timеs more than the amount of the note. He was considered perfectly solvent, as the defendant himself testified, and there were no special circumstances tending to excite haste or urgency in collecting the money. Moreover the nоte had become mislaid and could not be found until a considerable time after ‍‌​​‌‌​‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌​​‌​‌‌​‌​​‌‌​​‍the maker’s failure. The question then was, whether the plaintiff had been guilty of such a want of diligence, in collecting the note, as that the court was bound to decide as а matter of law that the defendant was released as guarantor, and to instruct the jury to render a verdict for the defendant. Wе think not. There was some delay, and, after the event, we know that the money could have been collected by judgment and execution during a period of four months. But the determination of the question does not depend upon that consideration. In this stаte we have held that the question of due diligence in such cases is a question for the jury, and depends upon the circumstanсes in each case.

In the case of Rudy v. Wolf, 16 S. & R. 79, there was a delay of eight years on the part of the assignee of the bond in obtaining judgment against the obligor, and the obligor had real and personal ‍‌​​‌‌​‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌​​‌​‌‌​‌​​‌‌​​‍property during that time. Yet this court said : “ It is sufficient if it be laid down that due diligence to recover the money from the obligor must be used; and what is due diligence must always be a part of the determination ‍‌​​‌‌​‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌​​‌​‌‌​‌​​‌‌​​‍of а jury upon the whole evidence submitted to them.”

In Kramph’s Exrx. v. Hatz’s Exrs., 52 Pa. 525, there was a guaranty by four persons of the payment of a bond for $4,000, which was аlso secured by a mortgage. The bond fell due in 1850, and in 1859, after notice to the holder of the bond to proceed and cоllect it, a sci. fa. was issued on the mortgage, ‍‌​​‌‌​‌‌​‌​‌​‌​‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌​​‌​‌‌​‌​​‌‌​​‍judgment obtained and execution issued, upon which the property was sold for considerably less than the balance due oft the mortgage. One of the guarantors having paid a judgment obtained against him for the whole amount due, brought an ac*389tion against the other guarantors for contribution. This Court held that the defence of want of due diligence could be made in the action for contribution, and said: “ But there was over nine years’ delay. In some circumstanсes this might work a release of a guarantor, because the contract of guaranty is conditioned upon the creditor’s diligent use of means to collect the debt out of the principal debtor. Such a contract creates only a contingent liability; and it becomes absolute only by due and unsuccessful diligence to obtain satisfaction from the principal, оr by circumstances that excuse diligence. . . . But every case is to be judged by its circumstances. Here was a debt of four thousаnd dollars secured by a mortgage of real estate that had cost the mortgagor that sum — he had paid the interest and $1,000 of thе principal of the debt, and from the time the mortgage fell due till he was sold out he was in insolvent circumstances. Now under these circumstances it was a question for the jury whether the delay was unreasonable and whether the guarantors were prejudiced by it. . . . This would seem to be the question in the cause, and it should have been left to the jury, and the event made to depend upоn their finding.”

In National Loan etc. Society v. Lichtenwalner, 100 Pa. 100, Mr. Justice Paxson, delivering the opinion of this court, said : “ That this is a contract of guaranty is settled by abundant authority (citing authorities). It is equally clear that such contract imposes upon the plaintiff the duty of exercising due diligence to enforce рayment from the principal before resort can be had to the guarantor (citing cases). What is due diligence? There аre many cases upon this point, and the general tenor of them appears to be that 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 еxecution before an action can be sustained against the guarantor, unless it appears that such proceedings could have produced no beneficial result (citing cases). And it must vary with the circumstances of each case; hence it is a question for the jury.”

It would seem upon this review of the authorities that the question of due diligence in this class of cases is а question for the jury, and we are of opinion that the learned court be*390low was entirely correct in adopting that cоurse in this instance. Yet we do not mean to say that in no circumstances would it be proper for the court to pass upon the question. We can readily understand that there may be cases, in which, upon the undisputed testimony, the want of diligence is so palpable and so gross that it may be the duty of the court to give a binding instruction to the jury upon its effect. We only say now that we do not consider the present as a case of that character.

Judgment affirmed.