Opinion · Supreme Court of North Carolina
Williams v. . Collins
Williams v. . Collins, 4 N.C. 382 (N.C. 1816)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1816-07-05
- Topic
- general
SIR: — The bearer hereof, Mr. Henry Fleury, informs me that he is about bargaining with you for the purchase of a new vessel and a cargo for her, also for a quantity of Indian corn. In case you and he should agree, I will guarantee any contract he may enter into with you for the same or any part thereof, and am, Sir, very respectfully, Your obedient servant, JOSIAH COLLINS. EDENTON, Nov. 2, 1803. (383) The material facts in the case were that in consequence of the above letter the contract was made, and the vessel and cargo delivered to Fleury, who was to pay for them in three several installments; for which he executed three notes, one payable 1 January, 1805, one on 15 June, 1805, and one on 15 June, 1806.
Citator
UpLaw has not yet analyzed Williams v. . Collins. The absence of a flag is not a finding that it is good law.
- Cited by
- 3 opinions
Sir, very respectfully, Your obedient servant, JOSIAH COLLINS.
EDENTON, Nov. 2, 1803.
(383) The material facts in the case were that in consequence of the above letter the contract was made, and the vessel and cargo delivered to Fleury, who was to pay for them in three several installments; for which he executed three notes, one payable 1 January, 1805, one on 15 June, 1805, and one on 15 June, 1806. These notes being unpaid, Williams instituted suit against Fleury, on 17 August, 1807, returnable to September term of the same year. A verdict was found for the plaintiff at March Term, 1808, and an execution issued from that term which was returned at June term "Nothing to be found"; analiasissued which was returned at September in the same manner.
The writ in this suit issued on 9 October, 1808, returnable to November of the same year, at Martin Superior Court.
On 15 January, 1807, Fleury mortgaged to creditors, in New York, property which was sold on 19 December, 1809, for £ 1,283 7.
Fleury became entitled to property under the will of Vallett, which was found in December, 1806, to the amount of £ 345. Fleury and Collins both lived in Edenton.
In the opinion of a majority of the Court the case is completely stripped of all difficulty by examining what was the nature and extent of the guaranty. It was not, as seems to be supported by the argument, that Fleury should beableto comply with any contract he might make; but that heshouldcomply. The defendant, therefore, to all legal consequences, became pledgedabsolutelyto the same extent that Fleury was bound, as soon as the plaintiff parted with his property; for it is apparent, from the terms in which the letter is written, that it was the defendant who was principally relied on. And as to the failure of Fleury, that was an event which it was incumbent on the defendant to guard against; and it behoovedhimto hasten the plaintiff or make such other provisions for his own safety as Fleury's circumstances would afford. But as to the plaintiff, he had from thebeginningprovided against that by requiring some other person to be bound to him who should be able to make good the contract of Fleury, though Fleury himself might fail; that the extent of the defendant's liability, as to every consequence in law, was the same as if he had himself signed the obligations which Fleury executed to the plaintiff; and that if his situation as a surety orwarrantorwas to avail him anything,hemust himself entertain andexpressan anxiety that suit should be brought against Fleury, otherwise the plaintiff need not; for, indeed, the fact may be that the plaintiff considered the defendant and Fleury equally interested in the purchase, as a joint concern.
As to the act of limitation, that is out of the question. The (387) plaintiff could maintain but one action upon the agreement, and to have the full benefit of it he must wait till the last failure of Fleury. Upon the whole, we think there is not the least analogy between this case and those which were cited for defendant.Page 294
The guaranty made by an endorser is aconditionalone, this an absolute one. The guaranty that the purchaser of cotton should be indemnified upon a resale can only be understood to mean an engagement that the price of the article shall be such that if the purchaserchooseshe may have an opportunity of saving himself. The engagement in the present case, to be analogous to those, must be that defendant guaranteed Fleury should beableto comply with his engagement. He has, however, thought proper to warrant that heshouldcomply, and, consequently, as Fleury has failed, the defendant is bound to perform his own; and therefore there must be judgment for the plaintiff.