Opinion
June Term, 1857.
A contract to make good certain notes on another, received in payment for property sold by plaintiff to the defendant, provided the maker of such notes was not good for them at a certain day thereafter, is not within the meaning of the statute for the suppression of fraud.
ACTION of ASSUMPSIT, tried before MANLY, Judge, at the Spring Term, 1857, of Wake Superior Court.
The plaintiff, in the month of January, 1852, sold a slave to the defendant, at the price of $670, to be paid in two bonds executed by E. P. Guion, and transferred without endorsement, amounting to the price above stated. Guion being considered in doubtful circumstances, the parties entered into a special agreement, which was as follows: At the request of the defendant, the plaintiff was not to sue Guion until six months, or thereabouts, had expired. At the end of that time, if the bonds were not paid, the plaintiff was to go to the defendant and inform him of the non-payment, and the defendant was then to give instructions as to what should be done with the bonds, and if the bonds were not good, the defendant was to make them good. Guion was apprised of the transfer of the bonds, and in a few days after the transfer, plaintiff called on him for the money, and received on them only a small sum. There was proof that, at the end of six months, the plaintiff went to the defendant and gave him information that the bonds were not paid, but it did not appear that, either at that time, or any other, the defendant gave the plaintiff any instructions what to do with them. The plaintiff, on the 15th of September of that year, brought suit against Guion on the bonds, and recovered judgment in February, 1853. Execution issued on this judgment, but no money was made, by reason of Guion's insolvency. It was proven that Guion was insolvent when the bonds were passed to the plaintiff, and continued so afterwards until the suit was brought; that before six months elapsed from the selling of the slave, all his property was conveyed, by deeds of trust, to secure others for amounts greatly beyond its value. The plaintiff proved a demand of the defendant before the bringing of this suit, and a refusal.
The Court charged the jury that the insolvency of Guion, and the inability of plaintiff to make the money out of him, would not sustain the action, unless, in addition thereto, the plaintiff went to the defendant at the end of six months, or thereabouts, for instructions; but if he did so, and Guion being insolvent, failed to pay, plaintiff was entitled to recover, unless the defendant gave instructions which the plaintiff refused to follow. Defendant excepted.
The jury returned a verdict for the plaintiff. Judgment and appeal by the defendant.
B. F. Moore and G. W. Haywood, for plaintiff.
Manly, Miller and Busbee, for defendant.
There is no error in the charge below. The contract sued on is in the nature of a guarantee under special circumstances. The plaintiff sold a slave the defendant, and took from him two bonds, or notes, executed by E. P. Guion to the defendant. The notes were transferred without endorsement. At the time of the transfer Guion was in doubtful circumstances, and it was a part of the agreement in respect to the notes, that plaintiff should not sue Guion upon them until after six months had expired, or there abouts; at the end of this time, if the bonds were not paid, the plaintiff was to go to the defendant and tell him of it, and the defendant would then instruct the plaintiff what to do with them. The contract was made in January, 1852. An action was brought by the plaintiff upon the bonds, in Sep't., 1852. Judgment was obtained and execution issued, and was duly returned nulla bona. The plaintiff waited six months before bringing his action on the bonds; and, at the end of that time, notified defendant that Guion had failed to pay, and the defendant gave him no instruction what to do with the bonds. This is not a contract which comes within the Act for the suppression of fraud; for, though it is in some sense to answer for the debt of another, yet it is strictly the debt of the defendant himself, arising upon a new and original consideration, of loss to the plaintiff and benefit to the defendant. Ashford v. Robinson, 8 Ire. Rep. 116; Farmer v. Rispass, 11 Ire. Rep. 172. In every particular the plaintiff complied with his part of the contract. He gave to the defendant the required notice of the failure of Guion to discharge the bonds, and his cause of action then arose, as the defendant gave him no instruction as to his future movements upon them. Nor is the plaintiff's right of action at all affected by not suing the defendant sooner, or by not suing Guion sooner. But the defendant has suffered no loss by the delay. for the case shows that Guion was entirely insolvent at the time the contract was made, and has remained so ever since; and that before the six months expired, he had made an assignment of all his property to pay other creditors.
There is no error, and the judgment is affirmed.
PER CURIAM. Judgment affirmed.