Public-domain · open source
OpenJurist

15 Ind. 144

Virden v. Ellsworth

Indiana Supreme Court

Decided December 1, 1860

Indiana Supreme Court · decided 1860-12-01

<p>A. leased certain premises to B., and, on the same day, G. signed an agreement, indorsed on the back of the lease, whereby he guarantied the , payment of the rent, as stipulated, in case of non-payment by B. Suit by A., against B. and G., upon the lease and guaranty, for the rent.</p> <p>Held,, that the undertaking- of the guarantor was distinct from that of the principal and collateral thereto, and that the parties were improperly joined.</p> <p>Held, also, that notice should have been given to the guarantor, of the default of his principal, within a reasonable time thereafter, unless facts existed which dispensed with such notice.</p>

Relies on Smith v. Bainbridge · Skelton v. Brewster

Good law ✅— No negative treatment on recordhow we know

Decided 1860-12-01

How this case has been cited

Cited by 10 later decisions — most recently June 1923

10 state decisions

401860187018801890190019101920decided

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 →

Hahna, J.

¶1Ellsioorth sued Eord and Virden, upon an instrument in writing, executed by Eord, for the payment of rent, and a guaranty thereon by Virden.

¶2The complaint is against Ford, upon the writing, and avers the non-payment, by him, of rent as stipulated; and against Virden, upon the indorsement thereon signed by him, and which, it is averred, was executed on the same day, and in consideration that Ellsworth would deliver possession of the premises to Ford, and is in these words, to wit:

¶3“For value received, I guaranty the payment of the rent, as stipulated by said Ford, in case of non-payment, by him. August, 11, 1850.”

¶4Separate demurrers were filed, by the defendants, to the complaint, which were overruled. It is insisted that there was a misjoinder of parties and, of course, of actions, and that the complaint does not state facts sufficient, &c.

¶5The argument is, that the liability of Ford was primary, and that of Virden, secondary; and, therefore, the instrument not being negotiable, they could not be joined; because there was no joint liability, and the causes of action show that there was no unity of interest, 2 R. S., § 16, p. 31; the one being liable, if at all, as lessee, the other, as guarantor. ■

¶6We are of opinion that the parties were improperly joined. The undertaking, or contract, of the guarantor was distinct *145from that of the principal, and collateral thereto; and his liability dependent upon a contingency, namely: the nonpayment of rent by the lessee. Nelson v. Boynton, 3 Met. 396; Skelton v. Brewster. 8 Johns. 376.

O. S. Orth and J. A. Stein, for appellants.Wm. G. Wilson and Geo. Gardner for appellee.

¶7For this reason the complaint was bad, as well as for the farther reason, that there is no special averment of notice, to the guarantor, of the non-payment of the rent, or any excuse shown for the failure to give such notice, or aver it. This notice, we think, should have been given in a reasonable time after the breach of the undertaking, unless facts existed which dispensed with it. Smith v. Bainbridge, 6 Blackf. 12; 1 Par. on Con. 514; 2 id. 174.

Per Ouriam.

¶8The judgment is reversed, with costs. Cause remanded, &c.

/15/ind/144 · .json · Public domain