Campbell v. Baker

46 Pa. 243, 1864 Pa. LEXIS 10

Opinion

The opinion of the court was delivered, January 4th 1864, by

Lowbje, C. J.

The court below was in error in treating this as a general guaranty. When a guaranty is general, that is, without having any of its terms fixed in the writing, the law adds the usual conditions that there shall be due and unsuccessful diligence used by the creditor to collect the claim from the principal, unless it appear that all diligence would be hopeless. But the law adds or implies no such condition when the parties have themselves fixed the terms of the contract.

They have done so in this instance. The guaranty is special of the payment of the note, “when due,” and it was broken by the non-payment at maturity, and so the law seems to have been usually understood: Brightly’s Rep. 96; 1 Miles 276; 1 Philad. Rep. 70.

Yet such a guarantor is a species of surety, and is discharged from his liability, if the creditor did, by a subsequent valid contract, give time to the principal. We cannot specially discuss this point, because there is no evidence on our paper-book by which we can judge o.f its relevancy and true character.

Judgment reversed, and a new trial awarded.