Jenkins v. . Wilkinson

12 S.E. 630, 107 N.C. 707

• Court: Supreme Court of North Carolina
• Decided: September 5, 1890
• Status: Published

Opinion

Shepherd, J.:

There is a plain distinction between a guaranty of payment and a guaranty of collection. “ The former is an absolute promise to pay the debt at maturity, if not paid by the principal debtor, and the guarantee may begin an action against the guarantor. The latter is a promise to pay the debt upon the condition that the guarantee shall diligently prosecute the principal debtor without success.” Jones v. Ashford, 79 N. C , 173; Baylie’s Sureties and Guarantors, 113.

This case belongs to the former of these classes, and the plaintiff having complied with the terms imposed upon him by the contract, had a right to sue the defendant Nancy Wilkinson upon the maturity of the obligation.

Pier agreement was not to pay after the plaintiff had exhausted the mortgage security, but it was absolute upon default of the debtor, and the requirement that the plaintiff was not to surrender the mortgage was only for her protection by way of subrogation, in the event of her being compelled to pay the debt.

No error.