Union & New Haven Trust Co. v. Hejaz Grotto Building Ass'n

Connecticut Superior Court

Union & New Haven Trust Co. v. Hejaz Grotto Building Ass'n

2 Conn. Super. Ct. 153, 2 Conn. Supp. 153, 1935 Conn. Super. LEXIS 235

CourtConnecticut Superior Court

DecidedJuly 12, 1935

DocketFile #46176

StatusPublished

This text of 2 Conn. Super. Ct. 153 (Union & New Haven Trust Co. v. Hejaz Grotto Building Ass'n) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Union & New Haven Trust Co. v. Hejaz Grotto Building Ass'n, 2 Conn. Super. Ct. 153, 2 Conn. Supp. 153, 1935 Conn. Super. LEXIS 235 (Colo. Ct. App. 1935).

Pincite

Opinion

BROWN, J.

The grounds of demurrer as claimed by these two defendants in argument are identical and boil down to: (1) the action was prematurely brought; and (2) there is *154 misjoinder of causes of action. So far as the action against the defendant Association is concerned (1) is obviously with' out merit, being predicated only upon the contention that no liability can arise as to the defendant guarantor Levine until the plaintiff has first exhausted his remedies against the de' fendant Association.

Whether (1) is a sufficient ground of demurrer as to the action against the defendant Levine depends upon whether or not paragraph 2 of the complaint sets forth an absolute guaranty giving rise to an unconditional obligation upon the part of the defendant Levine as guarantor to satisfy his stated part of the obligation at maturity, or merely a conditional guaranty which does not have this effect. Whether (2) is a sufficient ground of demurrer as to the action against each of these defendants, depends upon the determination of the same question.

“On an absolute guaranty the guarantor is unconditionally bound to satisfy the obligation at its maturity. There is no obligation on the part of the creditor to proceed against the principal debtor, and if the latter fails to pay, an action may generally be maintained against the guarantor, without de' mand or, legal proceedings against the principal.” 12 R.C.L. 1089, §42; Garland vs. Gaines, 73 Conn. 662, 666 But a conditional guaranty is an agreement in the nature of a con' tract guaranteeing collection, “no liability being incurred until after, by the use of due diligence, the guarantee has become unable to collect the debt from the principal debtor.” 12 R.C.L. 1064, §13. Under the former, “after maturity of the obligation and default of the principal debtor, the guarantor becomes primarily liable.” 12 R.C.L. 1054, §2.

Applying these principles, it logically follows that if there was an absolute guaranty here; since the note had matured, the action was not prematurely brought as to either of these defendants; and under §5512 (7) of the General Statutes the two causes of action were not improperly joined.

It is my conclusion that the vital and controlling question of whether the agreement alleged in paragraph 2 of the com' plaint is an absolute guaranty is one which can only be prop' erly determined upon a hearing upon the merits, and should not be decided upon this demurrer. This is true because the surrounding circumstances and relevant extrinsic facts, as well *? as the terms' of the writing itself, are to be considered in an riving at its true meaning. 12 R.C.L. 1055, §3, and 1075, §25..

Both demurrers are overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

BROWN, J.

The grounds of demurrer as claimed by these two defendants in argument are identical and boil down to: (1) the action was prematurely brought; and (2) there is *154 misjoinder of causes of action. So far as the action against the defendant Association is concerned (1) is obviously with' out merit, being predicated only upon the contention that no liability can arise as to the defendant guarantor Levine until the plaintiff has first exhausted his remedies against the de' fendant Association.

Whether (1) is a sufficient ground of demurrer as to the action against the defendant Levine depends upon whether or not paragraph 2 of the complaint sets forth an absolute guaranty giving rise to an unconditional obligation upon the part of the defendant Levine as guarantor to satisfy his stated part of the obligation at maturity, or merely a conditional guaranty which does not have this effect. Whether (2) is a sufficient ground of demurrer as to the action against each of these defendants, depends upon the determination of the same question.

“On an absolute guaranty the guarantor is unconditionally bound to satisfy the obligation at its maturity. There is no obligation on the part of the creditor to proceed against the principal debtor, and if the latter fails to pay, an action may generally be maintained against the guarantor, without de' mand or, legal proceedings against the principal.” 12 R.C.L. 1089, §42; Garland vs. Gaines, 73 Conn. 662, 666 But a conditional guaranty is an agreement in the nature of a con' tract guaranteeing collection, “no liability being incurred until after, by the use of due diligence, the guarantee has become unable to collect the debt from the principal debtor.” 12 R.C.L. 1064, §13. Under the former, “after maturity of the obligation and default of the principal debtor, the guarantor becomes primarily liable.” 12 R.C.L. 1054, §2.

Applying these principles, it logically follows that if there was an absolute guaranty here; since the note had matured, the action was not prematurely brought as to either of these defendants; and under §5512 (7) of the General Statutes the two causes of action were not improperly joined.

It is my conclusion that the vital and controlling question of whether the agreement alleged in paragraph 2 of the com' plaint is an absolute guaranty is one which can only be prop' erly determined upon a hearing upon the merits, and should not be decided upon this demurrer. This is true because the surrounding circumstances and relevant extrinsic facts, as well *? as the terms' of the writing itself, are to be considered in an riving at its true meaning. 12 R.C.L. 1055, §3, and 1075, §25..

Both demurrers are overruled.

Cite This Page — Counsel Stack

Bluebook (online)

2 Conn. Super. Ct. 153, 2 Conn. Supp. 153, 1935 Conn. Super. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-new-haven-trust-co-v-hejaz-grotto-building-assn-connsuperct-1935.

Opinion

Related

Cite This Page — Counsel Stack