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of law, that whatever discharges the prir cipal, will likewise discharge the surety. It is also necessary that the promise to answer for the debts and obligations of another, must be made expressly in writing, and to the one to whom the duties or obligations are owing, viz., the creditor. A promise made directly to the debtor, to pay his debt, for instance, would be an original promise.

The surety, as such, could not make a promise to answer for a debt, which is partly the debt of another, and partly his own debt. This would be an original promise. He must not have any personal interest, or responsibility, in the obligation, he agrees to answer for on behalf of another, if he would claim the rights and remedies of the surety. His promise, furthermore, must be collateral, and if credit is extended to him, and not to the one originally seeking it, his promise would be original, he would not be a surety at all.

It is not necessary that the principal debtor have knowledge of the fact, that another has become surety for the debt, if there exists a consideration to support the obligation of the surety, moving from the creditor to the surety. Another instance of showing that the principal debtor is not really a party to the surety's contract, is that a false representation on the part of the principal debtor amounting to a fraud, and made to the surety to induce him to become a surety, would not make the surety's contract voidable unless the creditor, with whom the surety contracts, was a party to the fraud.

SECTION 5. DISTINCTION BETWEEN A SURETY AND A GUARANTOR.

Although a surety and a guarantor are both parties who make an express agreement to bind them

selves for the performance of an act or the fulfillment of an obligation or duty of another, the distinctions between the contract of the two persons, and the obligations assumed under their contract, can be sharply made. A surety, as a general rule, is a party to the original contract of the principal, he signs his name to the original agreement at the same time the principal signs, and the consideration for the principal's contract is the consideration for the agreement of the surety's. The surety is therefore bound on his contract from the very beginning, and he is bound also to inform himself of the defaults of the principal debtor, and he is not in any part relieved from his obligations under the contract by the creditor's failure to inform him of the principal's default in the contract, for which contract the surety has become the security for. A guarantor, on the other hand, usually does not make his agreement to answer for the principal's debt or default, contemporaneously with the principal or by the same agreement, but his obligation is entered into subsequently to the making of the original agreement, and his agreement is not the contract that the principal makes, and hence a new consideration is required to support it. The contract of the principal's, not being the one the guarantor makes, he is not bound to inform himself of default, or failure of principal to perform his contract. The creditor is also under the obligation to inform the guarantor of the principal's default, not strictly in the sense of being obliged to give notice immediately after demand on the day the obligation matures, as in the case of an indorser, but if a failure to give notice materially prejudices the rights of the guarantor, the guarantor can claim a discharge on the obligation to the extent

of the injury suffered. The contract of the guarantor is not only collateral, but it is secondary; the surety's contract is primary and direct.

The guarantor is liable only after the default of the principal; the liability is established by the default of the principal, and by showing performance of the conditions of the contract. But on discussing the distinctions between the surety and the guarantor in respect to the liability assumed, we must remember that guaranties are of two kinds, the conditional guaranty, and the absolute guaranty. In the former the guarantor is only liable after the condition of the guarantor's contract is fulfilled. So, then, where A guarantees the collectibility of a certain sum for another person, his obligation matures when the creditor makes the showing that the debt is not collectible; this usually requires the exhausting of all the legal remedies to collect, as by securing a judgment against the principal debtor, and having execution issue on the judgment, together with the sheriff's return showing that the execution cannot be made, because the principal has no goods or property, that may be sold when levied on, to satisfy the execution. An absolute guaranty is one that arises where the guarantor fixes the time to pay, as of some date certain; in this kind of guaranty it is not necessary that the creditor first take steps against the principal to charge the guarantor, as, for instance, where the guaranty is for the payment of a bond according to its terms, or a guaranty for the payment of a promissory note at its maturity. It has also been held that an absolute

Graff vs. Simms, 45 Ind., 262;
Harris vs. Newell, 42 Wis., 687.
Milroy vs. Quinn et al., 69 Ind.,
406.

660.

• Atwood vs. Lester, 20 R. I.,
• Roberts vs. Ridle, 79 Pa. St., 468.
• Campbell vs. Baker, 46 Pa. St.,
243.

guarantor is not discharged by the creditor's delay in enforcing payment from the principal." It may be said, further, that it makes little difference whether the promissor calls himself a surety or guarantor, the terms of the agreement will control, in determining whether it is to be considered a contract of a surety or of a guarantor.

SECTION 6. THE LIABILITY OF THE SURETY.

It is the general rule, that the liability of a surety or a guarantor cannot be extended by implication or construction beyond the precise terms of their contract.8

The above rule is of universal application, no matter what variety of agreement the surety's contract may assume, and it is founded on the soundest principles of justice and public policy. From the practice of the courts in limiting the liability of the surety to the strict terms of his contract, the statement is made that the surety is a favorite of the law, but the use of the expression must not be misunderstood. The surety position is usually one of special misfortune, where his principal defaults, and the favor of the law is to excuse him for nothing that he has expressly bound himself to answer for, but the favor extends only to keeping his liability strictly within the terms of his agreement. The liability of the surety then is determined by the meaning of the language of his contract. A reasonable interpretation of the language used is to be had, and practically the same rules of construction are to be observed, in determining what the contract was, and in arriving ? Hooker vs. Gooding, 86 Ill., 60. • Brandt on Suretyship and Guaranty, Vol. 1, Sec. 93; Vinyard

vs. Barnes, 124 Ill., 346; Gunn Vs. Geary, 44 Mich., 615; Burson vs, Andes, 83 Va., 445.

at the intention of the parties, as are usually employed. These things are to be gathered, as in other cases, from the surrounding circumstances. The terms of the contract, and the circumstances, must be examined in any case, to ascertain the extent of the liability and the character of the obligation assumed." SECTION 7. THE CO-SURETY.

Parties who become liable for the same debt of another person, contracting with the same obligee, are co-sureties, and it is not necessary that they become sureties for the debt at the same time, as the other sureties; that is to say, co-sureties need not make their contracts contemporaneously, nor, need they become surety for the same amount, nor is privity of contract an essential, nor is it necessary that they even know that there is another, who is also liable as surety for the same debt.10

Where one of two or more co-sureties pays the debt of the principal debtor, he is entitled to contribution against his co-sureties, that is, he may maintain a suit for the sum, that he has paid in excess of the sum that he himself, as against his co-sureties, would be obliged to pay. Indebitatus assumpsit is the proper action by one co-surety against another, to recover the proportionate share of the common liability due from the co-surety." But one who is a surety for another surety is not liable in contribution."" Other rights of the co-surety as against his co-surety will be spoken of later under a separate head. SECTION 8. THE GRANTOR OF MORTGAGED PROPERTY.

It is a general rule of law that the grantee of mortgaged premises, who agrees to assume the mort

• Welsh vs. Ebersole, 75 Va., 656. 10 Matthews vs. Millsaps, 58 Miss., 564.

"Weeks vs. Parsons, 176 Mass.,

570.

"Allen vs. State, 61 Ind., 268.

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