The W. T. Rawleigh Medical Co. v. Atwater

Idaho Supreme Court

The W. T. Rawleigh Medical Co. v. Atwater

195 P. 545, 33 Idaho 399, 1921 Ida. LEXIS 4

CourtIdaho Supreme Court

DecidedJanuary 29, 1921

StatusPublished

Cited by9 cases

This text of 195 P. 545 (The W. T. Rawleigh Medical Co. v. Atwater) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The W. T. Rawleigh Medical Co. v. Atwater, 195 P. 545, 33 Idaho 399, 1921 Ida. LEXIS 4 (Idaho 1921).

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Opinion

RICE, C. J.

This is an action upon a contract of guaranty for the honest and faithful performance of a contract entered into between A. N. Salisbury and appellant. The contract was terminated about July 24, 1908. Thereafter, appellant obtained judgment against Salisbury and issued execution thereon which was returned nulla bona. 0n October 31, 1916, appellant brought this action against respondent and H. Barz, as guarantors. Respondent appeared and demurred to the complaint, setting forth, among other grounds, that the cause of action was barred by the statute of limitations. The court sustained the demurrer, and appellant refusing to plead further judgment of dismissal was entered.

The contract between Salisbury and appellant provided for the sale to Salisbury of certain goods and merchandise from time to time, and also provided that upon the expiration of his contract he would make a cash settlement of any balance owing at that time. The obligation of Salis *401 bury ta pay the balance due was unconditional. Respondent’s guaranty for the faithful performance of the contract by Salisbury, though in a sense a, continuing one, was absolute. A right of action accrued against him, in favor of appellant, immediately upon the breach of the contract by Salisbury. (Miller v. Lewiston Nat. Bank, 18 Ida. 124, 108 Pac. 901; Frost v. Harbert, 20 Ida. 336, 118 Pac. 1095, 38 L. R. A., N. S., 875.) The period of limitation provided by the statute for the commencement of an action founded upon a written obligation is five years after the cause of action shall have accrued.

The action of the court in sustaining the demurrer was correct, and the judgment is affirmed. Costs awarded to respondent.

Budge, Dunn and Lee, JJ., concur. McCarthy, J., did not sit at the hearing, nor take any part in the decision.

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RICE, C. J.

This is an action upon a contract of guaranty for the honest and faithful performance of a contract entered into between A. N. Salisbury and appellant. The contract was terminated about July 24, 1908. Thereafter, appellant obtained judgment against Salisbury and issued execution thereon which was returned nulla bona. 0n October 31, 1916, appellant brought this action against respondent and H. Barz, as guarantors. Respondent appeared and demurred to the complaint, setting forth, among other grounds, that the cause of action was barred by the statute of limitations. The court sustained the demurrer, and appellant refusing to plead further judgment of dismissal was entered.

The contract between Salisbury and appellant provided for the sale to Salisbury of certain goods and merchandise from time to time, and also provided that upon the expiration of his contract he would make a cash settlement of any balance owing at that time. The obligation of Salis *401 bury ta pay the balance due was unconditional. Respondent’s guaranty for the faithful performance of the contract by Salisbury, though in a sense a, continuing one, was absolute. A right of action accrued against him, in favor of appellant, immediately upon the breach of the contract by Salisbury. (Miller v. Lewiston Nat. Bank, 18 Ida. 124, 108 Pac. 901; Frost v. Harbert, 20 Ida. 336, 118 Pac. 1095, 38 L. R. A., N. S., 875.) The period of limitation provided by the statute for the commencement of an action founded upon a written obligation is five years after the cause of action shall have accrued.

The action of the court in sustaining the demurrer was correct, and the judgment is affirmed. Costs awarded to respondent.

Budge, Dunn and Lee, JJ., concur. McCarthy, J., did not sit at the hearing, nor take any part in the decision.

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Bluebook (online)

195 P. 545, 33 Idaho 399, 1921 Ida. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-w-t-rawleigh-medical-co-v-atwater-idaho-1921.

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