Fegley v. Jennings , 44 Fla. 203 ( 1902 )

Per Curiam.

This cause being reached in its regular order for final adjudication, was referred by the court to two of its commissioners, Mess. Maxwell and Glen, who1 have reported that the judgment should be reversed, for reason®’ .stated in the following opinion.

The first error assigned is that the court erred in overruling plaintiff’s demurrer to defendant’s first amended plea. The declaration alleged the making of a note to defendant, and that the latter “for value received transferred and set over the isame to the plaintiff, and guaranteed its prompt payment at maturity.” The cause of action, therefore, was an undertaking on the part of the defendant, accompanying the transfer of the note, whereby its prompt payment at maturity was guaranteed by defendant, and this undertaking was upon a valuable consideration. Defendant promised on his own account to pay a sum certain at a definite time. 2 Daniel on Neg. Insts. sections 1760, 1763; Brown v. Curtiss, 2 Comstock, 225; Johnson v. Gilbert, 4 Hill, 178. Nor was the undertaking a promise that the note should be paid- if reasonable diligence should be exercised in pursuing the makers, or a guaranty that the note was collectible, but it was an absolute and unconditional guaranty of payment as stated. The rule of the common law is that undeir such a guaranty presentation of the note to the maker when due, request to pay, and notice to the guarantor of dishonor need not be al'eged, nor is the guarantee at law under any legal obligations to first resort to the maker of the note guaranteed or any securities held for its payment. Walton v. Mascall, 13 M. & W. 452; Ibid. 72 and mote; 2 American Leading Cases, by Hare and Wallace, 116; Douglass v. Howland, 24 Wend. 35. Also the following American authorities : 2 Daniel on Neg. Insts. sections 1761,1769; Baylies on Sureties, &c., page 17, sec. 7; Wright v. Dyer, 48 Mo. 525; Osborne v. Lawson, 26 Mo. App. 549; Roberts v. Hawkins, 70 Mich. 566, 38 N. W. Rep. 575; Brown v. Curtiss, 2 Comstock, 225; Allen v. Rightmere, 20 Johns. 365; Newcomb v. Hale, 90 N. Y. 326; Hoyt v. Quint, 105 Iowa, 448, 75 N. W. Rep. 342; Huff v. Slife, 25 Neb. 448, 41 N. W. Rep. 289; City Sav. Bank v. Hopson, 53 Conn. 453, 5 Atl. Rep. 601; Gridley v. Capen, 72 Ill. 11; Duncanson v. Kirby, 90 Ill. App. 15; Hungerford v. O’Brien, 37 Minn. 306, 34 N. W. Rep. 161; Clay v. Edgarton, 19 Ohio St., 549; Roberts v. Riddle, 79 Pa. St., 468; Hanna v. Stroud, 13 S. Dak. 352, 83 N. W. Rep. 365; Donley v. Camp, 22 Ala. 659; Townsend v. Cowles, 31 Ala. 428; Cobb v. Little, 2 Greenleaf (Me.) 261, S. C. 11 Am. Dec. 72; Klein v. Kern, 94 Tenn. 34, 28 S. W. Rep. 295; Jenkins v. Wilkinson, 107 N. C. 707, 12 S. E. Rep. 630; Dickerson v. Derrickson, 39 Ill. 574; Day v. Elmore, 4 Wis. 190. See, also, Welch v. Walsh, 177 Mass. 555, 59 N. E. Rep. 440; Bingham v. Mears, 4 N. Dak. 437, 61 N. W. Rep. 808, S. C. 27 L. R. A. 257. The plea set forth a condition of the mortgage whereby it was claimed the note, by reason of a breach of such condition became immediately due, then averred a request on plaintiff to foreclose, which the latter failed to comply with, and a loss of the property given as security in consequence thereof, but these facts constituted no defence to an action upon the undertaking of the defendant, which wa® an absolute and unconditional guaranty of payment, and the demurrer to the plea should have been sustained. Newcomb v. Hale, supra; Fuller v. Tomlinson, 58 Iowa, 111, 12 N. W. Rep. 127; Adams Harv. Co. v. Tomlinson, 58 Iowa, 129, 12 N. W. Rep. 139; Blanding v. Wilsey, 107 Iowa, 46, 77 N. W. Rep. 508; Wells v. Mann, 45 N. Y. 327; Sample v. Martin, 46 Ind. 226; Brandt on Suretyship, &c. section 242. See, also, authorities supra. If defendant desired immediate steps taken to enforce the mortgage security, his remedy was to perform the contract of guaranty by paying the holder the amount of the note, and then enforcing the security himself.

The plea demurred to was the culy plea upon which •trial was had, and, as it did not constitute any defence ito the action, and the demurrer thereto should have been •sustained, it is unnecessary to consider any of the other .assignments of error.

The judgment should be reversed and the cause remanded with directions to sustain the plaintiff’s demurer to •defendant’s amended plea, and for such further proceedings as may be conformable to law and in accordance with this opinion. So ordered.