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When person

ing is a surety.


Lee vs. Clark, 1 Hill, p. 56; Holmes vs. Weed, 19
Barb., p. 128.

Subd. 6.-Aberdeen vs. Blackmar, 6 Hill, p. 324; Riley vs. Seymour, 1 Wend., p. 143; Thomas vs. Hubbell, 15 N. Y., p. 405. An indemnity against all actions, or in other equivalent terms, has been held to embrace groundless actions.-Trustees of Newburgh vs. Gallatian, 4 Cow., p. 340. An indemnity against all claims or demands, or in other equivalent terms, has been held not to embrace groundless demands.— Luddington vs. Pulver, 16 Wend., p. 404.

Subd. 7.-Bridgeport Ins. Co. vs. Wilson, 7 Bosw., p. 427.

Where one, at the request of another,

indemnify engages to answer in damages, whether liquidated or unliquidated, for any violation of duty on the part of the latter, he is entitled to be reimbursed in the same manner as a surety, for whatever he may pay.

Bail, what.

How regulated.

NOTE.-Manifestly just, and arises from the nature of the agreement under the general rule governing such contracts.

2780. Upon those contracts of indemnity which are taken in legal proceedings as security for the performance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances, the sureties are called bail.

NOTE. By the terms "undertakings or "recognizances," this section means attachment, injunction, receivers, appeal, and other similar bonds, most of which, if not all, are found in the Code of Civil Procedure, and bail, recognizance, peace, and other bonds of like character, most, if not all, of which are found in the Penal Code.

2781. The obligations of bail are governed by the statutes specially applicable thereto.

NOTE.--See note to the preceding section.



CHAPTER I. Guaranty in General.
II. Suretyship.








SECTION 2787. Guaranty, what.

2788. Knowledge of principal not necessary to creation of



2787. A guaranty is a promise to answer for the Guaranty, debt, default, or miscarriage of another person.

NOTE.-Stats. 1850, p. 266, Sec. 12. Says Parsons (Parsons on Contracts, Vol. 2, p. 3): "Originally the words warranty and guaranty were the same; the letter 'g' of the Norman French being convertible with the 'w' of the German and English, as in the names William or Guillaume. They are now sometimes used indiscriminately; but, in general, warranty is applied to a contract as to the title, quality, or quantity of a thing sold, and guaranty is held to be a contract by which one person is bound to another for the due fulfillment of a promise or engagement of a third party." See Brown on the Statute of Frauds, Sec. 155. In the case of bills, notes, checks, and certificates of deposit, as to who are guarantors and sureties, their rights and

Knowledge of principal not necessary to

creation of guaranty.

liabilities, see Riggs vs. Waldo, 2 Cal., p. 485; Ford vs. Hendricks, 34 Cal., p. 673; Williams vs. Covillaud et al., 10 Cal., p. 419; Brady vs. Reynolds, 13 Cal., p. 31; Reeves vs. Howe, 16 Cal., p. 152; Humphreys vs. Crane, 5 Cal., p. 173; Hartman vs. Burlingame, 9 Cal., p. 557; Dane vs. Corduan, 24 Cal., p. 157; Kritzer vs. Mills, 9 Cal., p. 21; Pierce vs. Kennedy, 5 Cal., p. 138; Aud vs. Magruder, 10 Cal., p. 282; Chipman vs. Morrill, 20 Cal., p. 130; Damon vs. Pardow, 34 Cal., p. 278; Whiting vs. Clark, 17 Cal., p. 407; Clay vs. Walton, 9 Cal., p. 328.

2788. A person may become guarantor even without the knowledge or consent of the principal.

NOTE.-Code Napoleon, Art. 2014.

Necessity of a considration.



SECTION 2792. Necessity of a consideration.

2793. Guaranty to be in writing, etc.

2794. Engagement to answer for obligation of another, when deemed original.

2795. Acceptance of guaranty.

2792. Where a guaranty is entered into at the same time with the original obligation, or with the acceptance of the latter by the guarantee, and forms with that obligation a part of the consideration to him, no other consideration need exist. In all other cases there must be a consideration distinct from that of the original obligation.

NOTE.-See Mallory vs. Gillett, 21 N. Y., p. 412. The person to whom a guaranty is made is here called the guarantee. This is the proper legal meaning of the word (see Bouvier's Dictionary, also Webster and Worcester), although it is often used in another sense. The common law rule is stated by Mr. Parsons (2 Parsons on Contracts, p. 7), to be this: "If the original debt or obligation is already incurred or undertaken previous to the collateral undertaking, then there must be a new and distinct consideration to sustain the guaranty."-Raband vs. De Wolfe, 1 Paine C. C., p. 580; Pike vs. Irwin, 1 Sandf., p. 14; Elder vs. Warfield, 7

Har. & J., p. 391; Ware vs. Adams, 24 Me., p. 177;
Parker vs. Barker, 2 Met., p. 423; Anderson vs. Davis,
9 Vt., p. 136; Blake vs. Parlin, 22 Me., p. 395; Bell
vs. Welch, 9 C. B.,
p. 154.
"But if the original debt
or obligation be founded upon a good consideration,
and at the time when it is incurred or undertaken, or
before that time, the guaranty is given and received
and enters into the inducement for giving credit or
supplying goods, then the consideration for which the
original debt is incurred is regarded as a consideration
also for the guaranty."-Bainbridge vs. Wade, 1 E. L.
& E., p. 236; 16 Q. B., p. 89; Campbell vs. Knapp, 15
Penn. St., p. 27; Klien vs. Currier, 14 Ill., p. 237;
Bickford vs. Gibbs, 8 Cush., p. 156; Leonard vs. Vre-
denburgh, 8 Johns., p. 29; Graham vs. O'Neil, 2 Hall,
p. 474; Conkey vs. Hopkins, 17 Johns., p. 113; Gardi-
ner vs. Hopkins, 15 Wend., p. 23; Raband vs. De
Wolfe, 1 Paine C. C., p. 580; Jones vs. Post, 6 Cal.,
p. 102; Hazeltine vs. Larco, 7 Cal., p. 32. The con-
sideration need not pass directly from the party receiv-
ing the guaranty to the party giving it. "If the party
for whom the guaranty is given receive a benefit, or
the party to whom it is given receive an injury in con-
sequence of the guaranty and as its inducement, this is
a sufficient consideration."-2 Parsons on Contracts, p.
7; Bickford vs. Gibbs, 8 Cush., p. 156; Leonard vs.
Vredenburgh, 8 Johns., p. 29; Morly vs. Boothby,
Bing., p. 113.

2793. Except as prescribed by the next section, a guaranty must be in writing, and signed by the guarantor; but the writing need not express a considera



NOTE.-A familiar provision of our statutes made every special promise to answer for the debt, default, or miscarriage of another person, void, unless some note or memorandum thereof expressing the consideration be in writing," etc.-Stats. 1850, p. 266. The Commissioners have inserted in the text an express provision that the writing need not express a consideration, because by the section immediately preceding an actual consideration is necessary to support a guaranty in some cases, while in others none is required. It has been held by the Court of Appeals of New York that a contract required by the Statute of Frauds to be in writing, cannot be partly in writing and partly oral; thus, where a writing relating to a contract for the sale of land fixes the price, but refers to "terms as speci

[blocks in formation]

Engagement to

answer for


of another,

when deemed original.

fied," which are not stated in writing, the memorandum is insufficient, and cannot be made good by oral evidence of the time agreed upon for payment.-Wright vs. Weeks, 25 N. Y., p. 153. If, therefore, the section in text should simply omit the former provision of the statute requiring the consideration to be stated, it might be exposed to the construction that in all those cases in which the consideration is made by the previous section, essential to the contract, it must be stated in reducing the contract to writing. In England, the statute (19-20 Vict., Chap. 97, Sec. 3) enables a party to prove the consideration of a guaranty by parol. So in Maine.-Rev. Stat., p. 631. See note to Sec. 1739.

2794. A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing:

1. Where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise; or by one who has received a discharge from an obligation in whole or in part, in consideration of such promise;

2. Where the creditor parts with value, or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his surety;

3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obliga tion, accepting the new promise as a substitute therefor; or upon the consideration that the party receiving it releases the property of another from a levy, or his person from imprisonment under an execution on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person;

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