Outlines of Suretyship and Guaranty

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Callaghan and Company, 1927 - 620 страница
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Presumption of signing on the back of nonnegotiable instrument
12
Right of holder to insert the contract of guaranty prior to Nego tiable Instruments
21
The effect of guaranteeing rather than indorsing negotiable instru ments
22
Guaranty on negotiable instrument assignable but not negotiable
23
Accommodation anomalous or irregular indorsers
24
Where the payee reacquired the instrument the view of Moore v
27
Effect of assigning a negotiable instrument
28
Right of the surety to set up incapacity of principal to contract
29
Difference between liability of surety and guarantor
30
principal 31 Fraud on the principal as a defense to the absolute guarantor
31
Failure of obligee to notify ordinary guarantor discharges him pro tanto
32
Fraud and duress upon the surety
33
Absolute and conditional guarantors
34
Failure of the principal to execute
35
Guaranty of payment and guaranty of collectibility
36
Obligation of surety and absolute guarantor compared
38
General and special guaranties
39
CHAPTER II
40
ORIGINAL AND SECONDARY
60
Thomas v Cook
66
PROMISES 44 38 The statute of frauds its effect upon contracts 39 Legislative object of section 4 statute of frauds 40 Special promise 41 Debt de...
67
Original and collateral special promises
68
Credit given to promisor or beneficiary
69
Novation
70
Executed contracts and the statute of frauds 50 Debt or assumpsit 51 Promise to pay out of the debtors funds in the possession of the promisor
71
Coexisting liability of principal and guarantor
74
Where the principal has a defense or is not liable
75
Consideration for the verbal promise 55 Where the consideration is a detriment to the promisee
77
Where the consideration is an incidental benefit to the promisor
79
The new consideration thcory
81
The main purpose rule 59 View of the Supreme Court of the United States
87
The true test
89
The property cases
91
The document cases
92
94 Agreement between creditor and principal to extend time to prin cipal on nonnegotiable instruments
94
The del credere cases
95
Résumé of main purpose rule 65 Cases involving socalled indemnity contracts
96
Release of principal reserving rights against sureties
97
Conditional agreement to extend time
98
Extension for uncertain time
99
Comparison of Thomas v Cook and Green v Cresswell
100
The creditor s ignorance of the existence of the suretyship relation
101
Extension of time as affecting a compensated surety
102
Reader v Kingham
103
Wildes v Dudlow
104
The effect of agreements between the obligee and one surety on cosureties
105
Was the promise to the debtor in Green v Cresswell
106
Addition of parties to an instrument
107
The creditors duty to the principals collateral
108
Loss of liens
109
63
110
Loss of rights in pledged property The effect of a judgment upon the debtors realty
111
Differences between contracts of indemnity and contracts of guar anty
112
The effect of a judgment upon the debtors personalty
113
The proper test to determine whether the promise is to answer for the debt of another person
114
Classification of the cases involving the statute of frauds
116
CHAPTER IV
119
Rules for construction
120
Continuing as to time and as to amountone view 79 Second view
122
Third view 81 Must notice of acceptance be given the guarantor The view of the United States Supreme Court
123
Guaranty of a preexisting debt and a guaranty of future credit Where the guaranty is of future credit to be extended to the prin cipal
125
View that extension of credit is acceptance of the offer to guarantee 85 Modification of requirement that notice of acceptance be given by promisee
127
Weight of American authority
128
Payment by the surety giving his note
159
Payment by instalments
160
Alteration of the suretys undertaking
172
Variation from the original contract
176
Where the principal is a partnership
180
Duty of the obligee to disclose material facts arising after the surety becomes bound
181
Change in the duties of the principalemployee 119 Change of the principals contract by the state as obligee
184
Liability of sureties for defaults occurring during prior employ ment
188
Setoff and counterclaim
189
THE PARTIES SUBSEQUENT TO THE FORMATION OF THE CONTRACT
192
Third view Cross v Allen
194
Exoneration
198
Basis for exoneration
199
Leading cases on exoneration
200
Marshaling securities
202
Subrogation by insurance companies
220
When the surety must surrender securities to the principal
229
One suretys subrogation to the right of the creditor against
235
Setoff
245
The surety must not be a party to an illegal contract
255
Sureties on criminal bail bonds
256
Effect of a judgment in favor of or against the principal
257
CHAPTER IX
261
Contribution among compensated sureties
269
Contribution where the parties are not coguarantors
270
How to determine the relation of the parties
271
Relation of indorsers
272
Sureties on successive appeal bonds
274
Right to recover contribution against a cosurety who became bound at the request of the plaintiff
277
How payment may be made
278
When the liability to contribute begins
279
Voluntary payment
283
Judgment against one surety as evidence against others
284
Proportion recoverable in contribution
285
Contribution between joint tort fea ors 182 Defenses to contribution
289
Failure of the principal to sign Where the paying surety is responsible for the principals default
290
Release of securities or liens
292
Where the paying surety is indemnified
293
Contribution and indemnity may coexist
295
Contribution for costs attorney fees or damages
296
Setoff
298
CHAPTER X
299
Summary of the statute of limitations as affecting relations
316
Special judgments against sureties
325
Liens obtained by legal proceedings
337
Is the surety who has paid the creditors claim in part entitled
347
CHAPTER XII
359
Agreement that amount paid to obligee is conclusive of the amount
367
Defenses of compensated surety on contractors bonds
376
Diligence required of the obligee to the indorser guarantor and surety
388
CHAPTER XIV
413
Right of the surety against the principal
430
The executor as trustee
443
277 The defenses of the surety on administration bonds
449
Bonds not complying with the statutory requirements
460
The plaintiffs bond
483
Receivers bonds
491
Breach of the bond
497
Effect on the sureties of judgment against the principal
503
TABLE OF CASES
521
INDEX
563
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Страница 175 - Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers.
Страница 337 - That all levies, judgments, attachments, or other liens obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt...
Страница 87 - Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.
Страница 300 - Words only shall be deemed sufficient Evidence of a new or continuing Contract, whereby to take any Case out of the Operation of the said Enactments or either of them, or to deprive any Party of the Benefit thereof, unless such Acknowledgment or Promise shall be made or contained by or in some Writing to be signed by the Party chargeable thereby...
Страница 61 - The fourth section of the statute of frauds (a) enacts, that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate ; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages, of another person...
Страница 506 - State of principal, and (a corporation organized and existing under the laws of ) surety, are held and firmly bound unto the United States Housing Corporation in the penal sum of dollars, lawful money of the United States, for the payment of which, well and truly to be made to the United States Housing Corporation, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
Страница 518 - America to the payment of which, well and truly to be made, We bind ourselves, our, and each of our heirs, Executors, and Administrators, Jointly and severally, firmly by these presents...
Страница 61 - No action shall be brought . . . whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person 'thereunto by him lawfully authorized.
Страница 300 - Enactments or either of them, so as to be chargeable in respect or by reason only of any written Acknowledgment or Promise made and signed by any other or others of them...
Страница 143 - primarily" liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same. All other parties are "secondarily

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