Durgin v. Kaplan

This case presents the question whether a creditor suing on a written agreement guaranteeing payment of indebtedness at maturity and permitting the creditor to receive either cash or securities in settlement may exercise such choice for the first time on appeal from a judgment for defendant guarantor, after the creditor tried and lost its case in the trial court on the theory that the stock it had received in the debtor’s Chapter XI bankruptcy proceeding was worth less than the total amount of the claim.

In order to protect guarantors against being east involuntarily into the role of insurers…