¶1The written agreement signed by Kline was one of guaranty for the performance by Sharp of his contract with the plaintiff. If he had stood upon this contract his present contention as to his liability would have been correct. But when his principal disappeared leaving his contract unperformed and his debts unpaid Kline had to elect his position. He elected to treat the failure and flight of his principal as settled facts, and to cooperate with the plaintiff in the completion of the work that Sharp had left undone, upon that basis. He examined Sharp’s outstanding bills and himself drew orders for or authorized the payment of, the amounts as adjusted by him; and the plaintiffs completed the work, under an understanding with him, in the most economical manner practicable. He thus voluntarily assumed the position of surety. He has pointed out no substantial error by his assignments and the judgment is affirmed.
167 Pa. 188
Lender v. Kline
Decided April 1, 1895
Supreme Court of Pennsylvania · decided 1895-04-01
Appeal, No. 194, July T., 1894, by Simon Kline, from judgment of O. P. Berks Co., Oct. T., 1892, No. 39, on verdict for plaintiffs. Assumpsit on a guaranty of a building contract. Before Ermentrout, P. J. At the trial it appeared that on January 8,1892, D. C. Sharp & Son contracted to build three three-story brick buildings for William Lender and G. Fred Mertz: Simon Kline became the guarantor of Sharp & Son for the faithful performance of the work.
Affirmed · Decided 1895-04-01