Woods v. Sherman, 71 Pa. 100

Woods v. Sherman

71 Pa. 100 | Pa. | 1872

The opinion of the court was delivered, by

Sharswood, J.

It is not necessary to consider the question which has been raised, whether the instrument of writing dated July 11th 1868, was a contract of guaranty or suretyship. The distinction between these two kinds of contract, is drawn with great precision by our brother Agnew, in the opinion of this court, delivered by him in Reigart v. White, 2 P. F. Smith 440: “ a contract of suretyship being a direct liability to the creditor, for the act to be performed by the debtor, and a guaranty being a liability only for his ability to perform this act. In the former, the surety assumes to perform the contract of the principal debtor, if he should not, and in the latter, the guarantor undertakes that his principal can perform; that he is able to do so. From the nature of the former, the undertaking is immediate and direct, that the act shall be done, which, if not done, makes the surety responsible at once, but from the nature of the latter, non-ability (in other words, insolvency) must be shown.” If we substitute any other word in the paper in question for the wrnrd “guarantee” — as “promise, agree or undertake,” there can be no doubt that the.writing would import an absolute and direct engagement for the payment of the contract. In Johnston v. Chapman, 3 Penn. Rep. 18, it was held that the legal import of the term “ guarantee,” is a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who in the first instance is liable: and that decision was followed in Isett v. Hoge, 2 Watts 128. In Sherman v. Roberts, 1 Grant’s Cases 261, however, the word guarantee was held to have been used in its popular and not its technical sense — a sense, it may be remarked, which very few laymen know or consider in making contracts of this kind. The leaning of this court of late years has, therefore, very properly been against construing such contracts to be general guarantees: Amsbaugh v. Gearhart, 1 Jones 482; Marberger v. Pott, 4 Harris 9; Campbell v. Baker, 10 Wright 243; Allen v. Hubert, 13 Id. 259; Reigart v. White, 2 P. F. Smith 438. The case here, however, was evidently tried below on the assumption that it was a contract of general guaranty, and considered in that light, we are unable to perceive that any error was committed by the learned judge, of which the plaintiff has any right to complain. The creditor, in order to recover against a technical guarantor, must prove due diligence against the principal debtor, or excuse *105himself by showing his insolvency, so that such pursuit would be fruitless. But it is not necessary that he should prove both. The question of reasonable diligence was one of fact for the jury, and was fairly submitted to them. It was not necessary that the return of nulla bona should have been made before the commencement of the action. Whenever made it showed primá facie due diligence. This disposes of most of the assignments of error. The third assignment assumes, that a contract cannot be made to guaranty a future contract — and although the words here are in the past tense, the circumstances clearly evince that its reference was to the contract about to be made or in contemplation. It was for the jury to say, whether the whole was not one cotemporaneous agreement, and if so, no notice to Thomas Woods was required. A guaranty of a contract implies, ex vi termini, that it was a concurrent act, and part of the original agreement: Snevily v. Johnston, 1 W. & S. 307; Unangst v. Hibler, 2 Casey 150. Nor can we say that the learned judge was wrong in declining to instruct the jury as requested in the defendant’s eighth point, that he was discharged by the alterations made in the work. The only evidence of the contract, was in the testimony of Roger Sherman, that Sherman & Co. were to print a new edition of a certain work for Davis & Woods. • He was not asked what the agreement or understanding was as to alterations. It was certainly incumbent on the defendant to show that there had been a change in the contract, in order to avail himself of the defence. Scarcely any work passes through the press under the supervision of the author, without some alteration, more or less. The presumption certainly would be very strong in favor of such a right having been expressly or impliedly reserved. It was in evidence that the alterations were rendered necessary by discoveries in science and improvements. The learned judge was not asked to submit to the jury the question, whether there had been any change in the contract for printing the work without the consent of the defendant. On the contrary, he was requested to instruct them peremptorily, that if such changes had been made in the work, without the knowledge or consent of Thomas Woods, there could be no recovery. Neither can the learned judge be convicted of error because he did not charge the jury that they should credit certain items as complained of in the twelfth assignment: for the reason that he was not asked so to charge, nor was his attention directed by any point presented, to the consideration of the only construction of the contract, which would have justified such an instruction : namely, that the engagement of Thomas Woods, was for $10,000 of the contract, and not for any liability of Davis & Woods beyond that sum. Whether this was its true construction, or whether the $10,000 was merely the limit or extent of the liability of Thomas Woods under the contract, is a question which we do not feel called on to decide.

Judgment affirmed.