D. M. Osborne & Co. v. Lawson
Missouri Court of Appeals
Appeal from the Lawrence County Circuit Court, M. G. McGregor, Judge. 'The contract of a guarantor is his separate, independent contract; it is collateral and secondary, and not a joint •engagement with the maker. The guarantor is liable only when the debtor has proved insolvent after due diligence has been used by the creditor to obtain payment; .and due diligence is that which a vigilant creditor employs when he has no other security than the obligation •of the debtor.
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Appeal from the Lawrence County Circuit Court, M. G. McGregor, Judge. 'The contract of a guarantor is his separate, independent contract; it is collateral and secondary, and not a joint •engagement with the maker. The guarantor is liable only when the debtor has proved insolvent after due diligence has been used by the creditor to obtain payment; .and due diligence is that which a vigilant creditor employs when he has no other security than the obligation •of the debtor. The exercise of this due diligence is a condition precedent to tbe right of action against the guarantor, and the guarantor…
1Opinion of the CourtThompson-, J.
This was an action upon the following contract of guaranty, indorsed on the back of a promissory note, for the sum of one hundred and seventy-five dollars, which note was given, by T. S. Price; to the plaintiffs:
“For value received, I, or we, hereby guarantee the *552payment of the within note, at maturity, or any time thereafter, and waive demand, protest, and notice of non-payment thereof.
“LAWSON, CLEMENTS & Co.”
The substantial defences were, that the contract of guaranty was made without consideration; that the plaintiffs had failed to present the note at maturity to the maker, Price, for…
2Cases cited8 opinions
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