Colby v. Farwell

51 A. 254, 71 N.H. 83, 1901 N.H. LEXIS 21

Opinion

Blodgett, C. J.

Tbe verdict of tbe jury closes tbe question as to tbe availability to tbe plaintiff of tbe mortgage security; and tbe utter insolvency of tbe maker of tbe guaranteed note being admitted, tbe sole question raised by tbe case is whether tbe plaintiff was bound to first proceed against tbe maker and tbe security as a condition precedent tó tbe enforcement of tbe guarantor’s liability. We are of opinion that be was not.

• Tbe guaranty sought to be enforced was one of collection, and as such it constituted an undertaking on tbe part of tbe guarantor to pay tbe mortgage debt if, upon maturity, payment could not by reasonable diligence be obtained from tbe debtor or from tbe mortgage. So far tbe authorities are uniform; but what constitutes reasonable diligence in such a case is a question upon which tbe authorities are conflicting, it being held in some jurisdictions that such diligence requires the prosecution of tbe debtor and of tbe security to execution and return of nulla bona, and that bis insolvency, or tbe worthlessness of tbe security, is no excuse for a failure to prpsecute (Craig v. Parkis, 40 N. Y. 181; Salt Springs Nat’l Bank v. Sloan, 135 N. Y. 371; Bosman v Akeley, 39 Mich. 710; French v. Marsh, 29 Wis. 649; McNall v. Barrow, 33 Kan. 495, 496; Roberts v. Laughlin, 4 No. Dak. 167), while in other jurisdictions it is held that if tbe debtor be so utterly insolvent, or, tbe security so obviously valueless, that an action against either would manifestly be fruitless, tbe bolder of tbe guaranty may resort to a suit upon it without first instituting proceedings against tbe one or tbe other. Camden v. Doremus, 3 How. 515, 533; Gillingham v. Boardman, 29 Me. 79, 82; Dana v. Conant, 30 Vt. 246; Sanford v. Allen, 1 Cush. 473; Cady v. Sheldon, 38 Barb. 103, 111, 112; McDoal v. Yeomans, 8 Watts 361; McClurg v. Fryer, 15 Pa. St. 293; Jones v. Ashford, 79 N. C. 172, 176; Stone v. Rockefeller, 29 Ohio St. 625; Brackett v. Rich, 23 Minn. 485; Dewey v. Investment Co., 48 Minn. 130, 134; Fall v. Youmans, 67 Minn. 83.

Tbe latter doctrine we take to be tbe true one. “ Tbe law requires no man, in tbe pursuit of bis rights, to do a vain and futile thing, useful to nobody, and hurtful to' himself by the needless expense and trouble it would impose.” McClurg v. Fryer, supra; Haven v. Haven, 69 N. H. 204, 205; Lyman v. Railroad, 66 N. H. 200, 203. See, also, Beebe v. Dudley, 26 N. H. 249; Dearborn v. Sawyer, 59 N. H. 95, 97; Howland v. Currier, 69 N. H. 202, 203.

Hxceptions overruled.

Walker, J., did not sit: tbe others concurred. •