The W. T. Rawleigh Medical Co. v. Atwater , 33 Idaho 399 ( 1921 )

Guaranty — Statute of Limitations.

1. Where one executes an absolute contract of guaranty for the payment of an obligation, a right of action accrues against him immediately upon the breach of the obligation guaranteed.

2. The statute of limitations begins to run in favor of a defendant at the time the cause of action accrues against him. This is an action upon a contract of guaranty for the honest and faithful performance of a contract entered into between A. N. Salisbury and appellant. The contract was terminated about July 24, 1908. Thereafter, appellant obtained judgment against Salisbury and issued execution thereon which was returned nulla bona. On October 31, 1916, appellant brought this action against respondent and H. Barz, as guarantors. Respondent appeared and demurred to the complaint, setting forth, among other grounds, that the cause of action was barred by the statute of limitations. The court sustained the demurrer, and appellant refusing to plead further judgment of dismissal was entered.

The contract between Salisbury and appellant provided for the sale to Salisbury of certain goods and merchandise from time to time, and also provided that upon the expiration of his contract he would make a cash settlement of any balance owing at that time. The obligation of Salisbury to pay the balance due was unconditional. Respondent's guaranty for the faithful performance of the contract by Salisbury, though in a sense a continuing one, was absolute. A right of action accrued against him, in favor of appellant, immediately upon the breach of the contract by Salisbury. (Miller v. Lewiston Nat. Bank, 18 Idaho 124, 108 P. 901;Frost v. Harbert, 20 Idaho 336, 118 P. 1095, 38 L.R.A., N.S., 875.) The period of limitation provided by the statute for the commencement of an action founded upon a written obligation is five years after the cause of action shall have accrued.

The action of the court in sustaining the demurrer was correct, and the judgment is affirmed. Costs awarded to respondent.

Budge, Dunn and Lee, JJ., concur.

McCarthy, J., did not sit at the hearing, nor take any part in the decision.