n. A promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who, In the first instance, is liable to such payment or performance. Gallagher v. Nichols, 60 N. Y. 444; Andrews v. Pope, 126 N. C.
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n. A promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who, In the first instance, is liable to such payment or performance. Gallagher v. Nichols, 60 N. Y. 444; Andrews v. Pope, 126 N. C. 472, 35 S. E. 817; Deming v. Bull, 10 Conn. 409; Reigart v. White, 52 Pa. 438.
A guaranty is an undertaking by one person to be answerable for the payment of some debt, or the due performance of some contract or duty, by another person, who himself remains liable to pay or perform the same. Story, Prom. Notes, 8 457.
A guaranty is a promise to answer for the debt default, or miscarriage of another person. Civil Code Cal. | 2787.
A guaranty Is a contract that some particular thing shall be done exactly as it is agreed to be done, whether it is to be done by one person or another, and whether there be a prior or
Srincipal contractor or not Redfield v. Haight, 7 Conn. 81.
Tbe definition of a "guaranty," by text-writers, is an undertaking hy one person that another shall perform his contract or fulfill his. obligation, or that, if he does not, the guarantor will do it for him. A guarantor of a bill or note is said to be one who engages that the note shall be paid, but is not an indorser or surety. Gridley v. Capen, 72 111. 13.
Synonyms. The terms guaranty and suretyship are sometimes used interchangeably; but they should not be confounded. The contract of a surety corresponds with that of a guarantor in many respects; yet important differences exist. The surety is bound with his principal as an original promisor. He is a debtor from the beginning, and must see that the debt is paid, and is held ordinarily to know every default of his principal, and cannot protect himself by the mere indulgence of the creditor, nor by want of notice of the default of the principal, however such indulgence or want of notice may in fact injure him. On the other hand, the contract of a guarantor is his own separate contract It is in the nature of a warranty by him that the thing guarantied to be done by the principal shall be done, not merely an engagement jointly with the principal to do the thing. The original contract of the principal is not his contract, and he is not bound to take notice of its non-performance. Therefore the creditor should give him notice; and it is universally held that, if the guarantor can prove that he has suffered damage by the failure to give such notice, he will be discharged to the extent of the damage thus sustained. It is not so with a surety. Durham v. Manrow, 2 N. Y. 548; Nading v. McGregor, 121 Ind. 465, 23 N. E. 283, 6 L. R. A. 686.
Guaranty and uyarranty are derived from the same root, and are in fact etymologically the same word, the "g" of the Norman French being interchangeable with the English "w." They are often used colloquially and in commercial transactions as having tne same signification, as where a piece of machinery or tbe produce of an estate is "guarantied" for a term of years, "warranted" being the more appropriate term in such a case. See Accumulator Co. v. Dubuque St. R" Co., 64 Fed. 70, 12 C. C. A. 37; Martinez v. Earnshaw, 36 Wkly. Notes Cas. (Pa.) 502. A distinction is also sometimes made in commercial usage, by which the term "guaranty" is understood as a collateral warranty (often a conditional one) against some default or event in the future, while the term "warranty" Is taken as meaning an absolute undertaking in prccscnti, against the defect, or for
the quantity or quality contemplated by the parties in the subject-matter of the contract turges v. Bank of Circleville, 11 Ohio St. 169, 78 Am. Dec. 296. But in strict legal usage the two terms are widely distinguished in this, that a warranty is an absolute undertaking or liability on the part of the warrantor, and the contract is void unless it is strictly and literally performed, while a guaranty is a promise, entirely collateral to the original contract, and not imposing any primary liability on the guarantor, out binding him to be answerable for the failure or default of another. Masons' Union L. Ins. Ass'n v. Brockman, 20 Ind. App. 206, 50 N. EL 493.
-Absolute guaranty. An unconditional promise of payment or performance on the default of the principal. Mast v. Lehman, 100 Ky. 466, 38 S. W. 1056; Beardsley v. Hawes, 71 Conn. 39. 40 Atl. 1043; Farmers' Bank v. Tatnall, 7 Houst. (Del.) 287, 31 Atl. 879; Es-berg-Bachman Tobacco Co. v. Heid (D. C.) 62 Fed. 962.-Collateral guaranty. A contract by which the guarantor undertakes, in case the principal fails to do what he has promised or undertaken to do, to pay damages for such failure ; distinguished from an engagement of suretyship in this respect, that a surety undertakes to do the very thing which the principal has promised to do, in case the latter defaults. Woody v. Haworth, 24 Ind. App. 634, 57 N. E. 272; Nading v. McGregor, iff Ind. 470, 23 N. E. 283, 6LR. A. 686.-Conditional guaranty. One which depends upon some extraneous event, beyond the mere default of the principal, and generally upon notice of the guaranty, notice of the principal's default, and reasonable diligence in exhausting proper remedies against the principal. Yager v. Title Co., 112 Ky. 982, 66 S. W. 1027; Tobacco Co. v. Heid (D. C.) 62 Fed. 962; Beardsley v. Hawes, 71 Conn. 39, 40 Atl. 1043.-Continuing guaranty. One relating to a future liability of the principal, under successive transactions, which either continue his liability or from time to time renew it after it has been satisfied. Sewing Mach. Co. v. Courtney, 141 Cal. 674, 75 Pac. 296; Buck v. Burk, 18 N. Y. 340; Bank v. Drake (Iowa) 79 N. W. 121.-Special guaranty. A guaranty which is available only to the particular person to whom it is offered or addressed; as distinguished from a general guaranty, which will operate in favor of any person who may accept it. Everson v. Gere, 40 Hun (N. Y.) 2o0; Tidioute Sav. Bank v. Lib-bey, 101 Wis. 193, 77 N. W. 182, 70 Am. St Rep. 907; Evansville Nat Bank v. Kauffmann, 93 N. Y. 273, 45 Am. Rep. 204.-Guarantied stock. See STOCK.-Guaranty company. A corporation authorized to transact the business of entering into contracts of guaranty and suretyship; as, one which, for fixed premiums, becomes surety on judicial bonds, fidelity bonds, and the like. See yEtna L. Ins. Co. v. Coulter, 74 S. W. 1050, 25 Ky. Law Rep. 193.-Guaranty insurance. See INSURANCE.
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