Rowland v. . Rorke , 49 N.C. 337 ( 1857 )

Nash, C. J.

There is no error in the charge below. The contract sued on is in 'he nature of a guarantee under special circumstances. The plaintiff sold a slave the defendant, and •took from him two bonds, or notes, executed by E. P. Guión to the defendant. The notes were transferred without endorsement' At the time of the transfer Guión was in doubtful circumstances, and it was a part of the agreement in respect to the notes, that plaintiff should not sue Guión upon them until after six months had expired, or there abouts; at the end of this time, if the bonds were not paid, the plaintiff was to go to the defendant and tell him of it, and the defendant would then instruct the plaintiff what to do with them. The contract was made in January, 1852. An action was brought by the plaintiff upon the bonds, in Sep’t.,1852. Judgment was obtained and execution issued, and was duly returned nulla tona. The plaintiff waited six months before bringing his action on the bonds; and, atthe end of that time, notified defendant that Guión had failed to pay, and the defendant gave him no instruction what to do with the bonds. This is not a contract which comes within the Act for the-suppression of fraud ; for, though it is in some sense to answer for the debt of another, yet it is strictly the debt of the defendant himself, arising upon a new and'original-consideration, of loss to the. plaintiff and benefit to the defendant. Ashford v. Robinson, 8 Ire. Rep. 116 ; Farmer v. Rispass, 11 Ire. Rep. 172. In every particular the plaintiff complied with his part of the contract. He gave to the defendant the required notice of the failure of Guión to discharge the bonds, and his cause of action then arose, as the defendant gave him no instruction as to his future movements upon them. Nor is the plaintiff’s'right of action at all affected by not suing the defendant sooner, or by not suing Guión sooner. But the defendant has suffered no loss by the delay, for the ease shows that Guión was entirely insolvent at the time the contract was made, and has remained so ever since ; and that before the six months expired, ho had made an assignment of all his property to pay other creditors.

There is no error, and the judgment is affirmed.

Pee OubiaM. Judgment affirmed.