Wheeler v. Lewis

11 Vt. 265

• Court: Supreme Court of Vermont
• Decided: January 15, 1839
• Status: Published

Opinion

The opinion of the court was delivered by

Redfíeld, J.

It is now settled law, that upon a guaranty, like the one in question,the person taking the security is bound to resort to legal measures within a reasonable time, and to pursue them with common diligence until the final event is thereby determined ; or else prove, what would make any such resort useless, i. e. the absolute insolvency of the maker of the note.

This was not done in the present case. For, although a suit was seasonably commenced, it was, by the negligence of the plaintiff, or his attorney, suffered to be continued in court one term, and in consequence of that delay, as the jury have found, the note failed to be collected of the maker. Under this state of facts, we think the loss should fall upon the plaintiff.

It is argued that, by the terms of the guaranty, the plaintiff was not bound to resort to legal measúres until the expiration of the time limited in the contract. We think this is not the most obvious meaning of the terms used. The limitation used seems to have reference to the time when the question of collection should be determined. This construction is favored by reference to the terms of court in this county, they being so arranged,. that before the 1st day of July a course of law could be made effectual, if ever. The conduct of the plaintiff, in suing immediately,. shows, that such was his understanding of the contract. Having elected so to treat the contract, he must now be bound by it.

Judgment affirmed.