Abbildungen der Seite
PDF
EPUB

obligation, in consideration of the obligation, in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his surety;

3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor; or upon the consideration that the party receiving it releases the propcrty of another from a levy, or his person from imprisonment under an execution on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person;

4. Where a factor undertakes, for a commission, to sell merchandise and guaranty the sale;

5. Where the holder of an instrument for the payment of money, upon which a third person is or may become liable to him, transfers it in payment of a precedent debt of his own, or for a new consideration, and in connection with such transfer enters into a promise respecting such instrument. En. March 21, 1872. Cal.Rep.Cit. 59, 444; 67, 294; 67, 598; 77, 8; 77, 81;

81, 288; 113, 434; 117, 591. Subd. 1--130, 415. Subd. 2128, 253; 70, 557. Subd. 3—117, 593; 123, 383. $ 2795. Acceptance of guaranty. A mere offer to guaranty is not binding, until notice of its acceptance is communicated by the guarantee to the guarantor; but an absolute guaranty is binding upon the guarantor without notice of acceptance. En. March 21, 1872.

Cal.Rep.Cit. 125, 481 ; 128, 253.
Absolute guaranty: See post, sec. 2806.

ARTICLE III.

INTERPRETATION OF GUARANTY. $ 2799. Guaranty of incomplete contract.

2900. Guaranty that an obligation is good or collectible. 2801.

Recovery upon such guaranty. $ 2802. Guarantor's liability upon such guaranty.

$ 2799. Guaranty of incomplete contract. In a guaranty of a contract, the terms of which are not then settled, it

is implied that its terms shall be such as will not expose the guarantor to greater risks than he would incur under those terms which are most common in similar contracts at the place where the principal contract is to be performed. En. March 21, 1872.

Cal.Rep.Cit. 80, 341.

$ 2800. Guaranty that an obligation is good or collect. ible. 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. En. March 21, 1872.

§ 2801. Recovery upon such guaranty. A guaranty, 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 ics payment, if no part of the debt could have been collected thereby. En. March 21, 1872.

$ 2802. Guarantor's liability upon such guaranty. In the cases mentioned in section 2800, the removal of the principal from the state, leaving no property therein from which the obligation might be satisfied, is equivalent to the insolvency of the principal in its effect upon the rights and obligations of the guarantor. En. March 21, 1872.

2806. $ 2807, $ 2808. 8 2809. $ 2810.

ARTICLE IV..
LIABILITY OF GUARANTORS.
Guaranty, how construed.
Liability upon guaranty of payment or performance.
Liability upon guaranty of a conditional obligation.
Obligation of guarantor cannot exceed that of the principal.
Guarantor not liable on an illegal contract.

$ 2806. Guaranty, how construed. A guaranty is to be deemed unconditional unless its terms import some condition precedent to the liability of the guarantor. En. March 21, 1872.

Cal.Rep.Cit. 78, 448; 128, 470.

$ 2807. Liability upon guaranty of payment or performance. A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal, and without demand or notice. En. March 21, 1872. Cal.Rep.Cit. 62, 487; 77, 477 ; 77, 478; 78, 448; 86, 373;

94, 103; 105, 441; 128, 470; 128, 668. § 2808. Liability upon guaranty of a conditional obligation. Where one guarantees a conditional obligation, his liability is commensurate with that of the principal, and he is not entitled to notice of the default of the principal, unless he is unable, by the exercise of reasonable diligence, to acquire information of such default, and the creditor has actual notice thereof. En. March 21, 1872.

Cal.Rep.Cit. 121, 606.

$ 2809. Obligation of guarantor cannot exceed that of the principal. The obligation of a guarantor must be neither larger in amount nor in other respects more burdensome than that of the principal; and if in its terms it exceeds it, it is reducible in proportion to the principal obligation. En. March 21, 1872.

Cal.Rep.Cit. 61, 399.

$ 2810. Guarantor not liable on an illegal contract. A guarantor is not liable if the contract of the principal is unlawful; but he is liable notwithstanding any mere personal disability of the principal, though the disability be such as to make the contract void against the principal. En. March 21, 1872.

ARTICLE V.

CONTINUING GUARANTY.
Continuing guaranty, what.
Revocation.

$ 2814. $ 2815.

§ 2814. Continuing guaranty, what. A guaranty relating to a future liability of the principal, under successive transactions, which either continue his liability or from time to time renew it after it has been satisfied, is called a continuing guaranty. En. March 21, 1872.

$ 2815. Revocation. A continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions, unless there is a continuing consideration as to such transactions which he does not renounce. En. March 21, 1872.

2819. 2820.

2821. § 2822. 8 2823, § 2824,

2825.

ARTICLE VI.
EXONERATION OF GUARANTORS.
What dealings with debtor exonerate guarantor.
Void promises.
Rescission of alteration.
Part performance.
Delay of creditor does not discharge guarantor.
Guarantor indemnified by the debtor, not exonerated.
Discharge of principal by act of law does not discharge

guarantor.

84;

§ 2819. What dealings with debtor exonerate guarantor. A guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended. En. March 21, 1872. Cal.Rep. Cit. 70,

77, 477 ; 91, 210; 110, 665; 117, 497; 120, 501; 122, 66; 122, 67; 122, 668; 130, 254, Liability of guarantor: See ante, secs. 2806 et seq.

Rights of creditor where security given: See post, sec. 2854.

Forbearance will not discharge: Post, sec. 2823.

Neglect or refusal to sue after request will discharge: Post, sec. 2845.

Discharge of surety by alteration of principal's contract: Post, sec. 2821.

$ 2820. Void promises. A promise by a creditor, which for any cause is void, or voidable by him at his option, does not alter the obligation or suspend or impair the remedy, within the meaning of the last section. En. March 21, 1872.

$ 2821. Rescission of alteration. The rescission of an agreement altering the original obligation of a debtor, or impairing the remedy of a creditor, does not restore the liability of a guarantor who has been exonerated by such agreement. En. March 21, 1872.

$ 2822. Part performance. The acceptance, by a creditor, of anything in partial satisfaction of an obligation, reduces the obligation of a guarantor thereof, in the same measure

as that of the principal, but does not otherwise affect it. En. March 21, 1872.

Part performance of the obligation, expressly accepted by the creditor in writing, would extinguish the obligation of the debtor, and therefore that of the surety: Ante, secs. 1523, 1524.

$ 2823. Delay of creditor does not discharge guarantor. Mere delay on the part of a creditor to proceed cgainst the principal, or to enforce any other remedy, does not exonerate a guarantor. En. March 21, 1872.

Cal.Rep.Cit. 77, 60; 77, 478; 94, 103; 130, 254.
Notice to creditor to sue: See post, sec. 2845.

§ 2824. Guarantor indemnified by the debtor, not exonerated. A guarantor, who has been indemnified by the principal, is liable to the creditor to the extent of the indemnity, notwithstanding that the creditor, without the assent of the guarantor, may have modined the contract or released the principal. En. March 21, 1872.

Cal.Rep.Cit. 117, 297; 117, 497.
See ante, sec. 2819 and sec. 2794, subd. 1.

8 2825. Discharge of principal by act of law does not discharge guarantor. A guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor. En. March 21, 1872.

CHAPTER II.

SURETYSHIP.
Article 1. Who are Sureties, $82831-2832.

II. Liability of Sureties, 88 2836-2840.
III. Rights of Sureties, $$ 2844-2850.
IV. Rights of Creditors, $ 2854.

Letter of Credit, $$ 2858-2866.

V.

ARTICLE I.

WHO ARE SURETIES. 2831. 1

Surety, what. 2832. Apparent principal may show that he is surety.

8 2831. Surety, what. A surety is one who at the request of another and for the purpose of securing to him a benefit,

« ZurückWeiter »