Ritchie v. Walter

31 A. 334, 166 Pa. 604, 1895 Pa. LEXIS 1256

• Court: Supreme Court of Pennsylvania
• Decided: March 11, 1895
• Docket: Appeal, No. 167
• Status: Published

Opinion

Pee Cuetam,

As was said in Campbell v. Baker, 46 Pa. 243, “ 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 appears that all diligence would be hopeless. But the law adds or implies no such conditions where the parties themselves fixed the terms of the contract.” In this case, the defendant by his contract undér seal, indorsed on the judgment note, guarantees “ the payment of the within judgment note and all moneys due and to become due thereon if the same cannot be recovered out of the property purchased of Robert Service’s estate by said Howell McNair by deed this day delivered.” This is a special, not a general guaranty. By forthwith entering judgment on the note and thus acquiring a lien on the real estate mentioned in the guarantee, and then keeping that lien continuously alive, the plaintiff did all that, in good faith, she was bound to do under the terms of the special contract. In view of the terms of the guaranty we think the instructions recited in the assignment of error are substantially correct, and the judgment should not be disturbed.

Judgment affirmed.