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107 N.C. 707

12 S.E 630

Jenkins v. . Wilkinson

Supreme Court of North Carolina

Decided September 5, 1890

Supreme Court of North Carolina · decided 1890-09-05

This wras a civil action, fried by Brown, J., at the Fall Term, 1890, of Gaston Superior Court. The complaint alleged that the defendant T. A. H. Wilkinson was indebted to him as cashier, and gave his promissory note, of which the following is a copy: “$800. Gastonia, N. C., Jan. 5th, 1888.

Key passage — most relied on by later courts

“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.”

quoted by 1 later decision, including Crane Co. v. . Longest Tessier Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1890-09-05

How this case has been cited

Cited by 8 later decisions — most recently April 1972

8 state decisions

30189019001910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Shepherd, J.:

¶1 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.

¶2 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.

¶3 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.

¶4 No error.

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