§ 2. Classification of obligations. Needless confusion has resulted with reference to original and collateral promises made by a surety, guarantor, indemnitor and indorser, because "there is considerable loose writing in the text books."4 An understandable nomenclature will aid in the dissipation of that confusion. These terms present certain similarities, "but there is a marked distinction, both in the form and effect of the undertakings." 5 The purpose of this chapter is threefold: first, an elementary one, to define the meaning of these various terms employed by the courts; second, to consider the operative facts necessary to bring a case within those definitions; third, the consideration of the result when a specific case comes within the one or the other of these classes. Contractual relations may be classified as independent and accessorial. In the former the promisor incurs the primary liability and has no recourse against anyone in case the promisee compels him to pay. Those liable on accessorial obligations, on the other hand, have, in most cases, a right to compel some one else to reimburse them for the loss sustained, because an accessorial liability is subordinate to a principal liability, which the law implies the principal obligor promised to pay. In the sense used in the cases, the accessorial obligation may be primary or secondary, the difference being that the primary contract is entered into at the same time, on the same contract, with another person, while in the latter there are two contracts relating to the same transaction." 4 McMillan et al. v. Bull's Head Bank (1869) 32 Ind. 11, 13, 2 Am. Rep. 323. 5 Judge Deady in Hall v. Weaver (1888) 34 Fed. 104, 106, 13 Sawy. 188. 6 Fields v. Willis (1905) 123 Ga. 272, 51 S. E. 280, 282, says: "While the liability of both (surety and guarantor) is accessorial to the principal, in the case of a surety the obligation is primary, and the guarantor's liability is secondary." Hooper v. Hooper (1895) 81 Md. 155, 31 Atl. 508, 48 A. S. R. 496, 500: "Both are accessory contracts; that of a surety is in some sense conditional; that of a guarantor is strictly so. A guaranty is secondary, whilst suretyship is a primary obligation.'' The classification in the Roman law was similar. "The creditor asks: centam quae Titius mihi debet, eadem fide tua esse jubes? The surety replies: fide me esse jubeo. The effect of such a fide The following outline is believed to contain the various kinds of obligations arising out of the contractual relationship: pendent contract, but two parties are required. To an accessorial contract, by a guarantor or surety, at least three parties are necessary: (a) the principal, for whose benefit it is made; (b) the obligee-creditor to whom the promise is made; (c) the obligor-surety-guarantor, who undertakes that the principal's obligation will be performed. No controversy need arise over the obligation of the principal, as the courts recognize he is "the one for whose account the contract is made, whose debt or default is the subject of the transaction." He can demand reimbursement from no one. The entire loss must eventually fall upon him. His agreement, while contemporaneous with that of the surety, is reliant upon no other agreement, obligation or person. jussio is to make the surety correal debtor with the principal debtor, his correal liability being accessory to that of the principal, i. e., he (the surety) is liable after the principal debtor." Sohm's In stitutes of the Roman Law (Ledlie's Tr. 1901, 2d Ed.) 404. 7 Stearns on Suretyship (1922, 3d Ed.) Sec. 5; Brandt on Suretyship and Guaranty (1905, 3d Ed.) Sec. 4. "Indemnity contracts are of great variety." But the indemnitor may be said to be the one who, by contract, agrees to secure another against an anticipated loss or damage. "A contract of indemnity is an original and independent one. Between the promisor and the promisee, there is a direct privilege, while there is no debt owed by the third person to the promisee, and there is no remedy against such third person."9 The liability of the warrantor must be an independent one. As usually understood, he undertakes absolutely against the defect in quantity, quality, or title, or that the quantity or quality shall be of an agreed standard. True, his contract usually relates to another contract but his promise is independent of that of any other person. Without an express agreement, he cannot compel reimbursement from anyone, and it is absolute.10 Accessorial obligors are liable upon an agreement entered into in reliance upon another contract which is necessary to give the accessorial contract vitality. 8 Wolthausen v. Trimpert (1919) 93 Conn. 260, 105 Atl. 687, 688. 9 Hall et al. v. Equitable Surety Co. (1917) 126 Ark. 535, 191 S. W. 32, 34. 10 The opinion in the case of Pacific Power and Light Co. v. White (1917) 96 Wash. 18, 164 Pac. 602, said in part: "We think it plain, however, that the contract here involved is one of warranty and not of guaranty. While these words are often somewhat indiscriminately used, they do not carry the same meaning or refer to obligations of the same legal nature. In 12 R. C. L. 1056, the difference in legal effect between a 'warranty' and a 'guaranty' is stated as follows: "It seems that derivatively the words "warranty" and "guaranty" import the same kind of transaction, and they are still loosely employed as though they were synonymous. In legal conception, however, a guaranty is distinguishable from a warranty. Each is an undertaking by one party to another to indemnify or make good the party assured against some possible default or defect in the contemplation of the parties; but a guaranty is understood, in its strict and legal and commercial sense, as a collateral warranty, and often as a conditional one, against some default or event in the future, whereas the term "warranty" is generally Casual reading of the opinions will convince that courts have frequently used the term warrantor or indemnitor or guarantor or surety when it was inapplicable.11 These obligations can be understood best by considering certain operative facts necessary to exist in order to bring a case within them. A comparison of the nature of some of the obligations will help to clarify. § 4. Parties to independent and accessorial contracts. As explained in the previous section, in all contracts by the indemnitor, warrantor or principal obligor, there are but two necessary parties, the promisor and promisee. A makes his promise to pay B in a certain event. No other parties are necessary, and no other collateral contract is an integral part of it. understood as an absolute undertaking in praesenti as well as in futuro, against the defect, or for the quantity or quality contemplated by the parties in the subject matter of the contract. In the sale of a commodity an undertaking by the seller to answer for the defects therein is construed as a warranty, though the seller uses the term "guaranty."'" See Gay Oil Co. v. Roach (1910) 93 Ark. 454, 125 S. W. 122, 137 A. S. R. 95, 27 L. R. A. (N. S.) 914. DeColyar in his book on Guarantee and Surety (1887), p. 2, says: "It seems that originally the words warranty and guaranty were the same; 'the letter g of the Norman-French being convertible with the w of the German and English, as in the names William or Guillaume. They are sometimes used indiscriminately; but, in general, warranty is applied to a contract as to the title, quality or quantity of the thing sold . . ; and guaranty is held to be the contract by which one person is bound to another for the due fulfillment of a promise or engagement of a third party.'' See Sturges & Co. v. Bank of Circleville (1860) 11 Ohio St. 153, 168-169, 78 Am. Dec. 296. 11 Referring to guaranty and In a suretyship undertaking, however, the promise of the principal and the surety is joint, or joint and several, and the liability of the surety is dependent upon the principal's contract. Here we see A and B making a joint, or a joint and several promise, to C. In a guaranty, the promise of the guarantor is separate from that of the principal. Though there are three or more parties to a guaranty, as in the case of a suretyship undertaking, they are differently situated. Here A, the principal, has a contract with C; subsequently, or independently of it, B agrees to discharge the same obligation A has assumed. The agreement between B and C is dependent upon that existing between A and C. warranty: "The two are often used interchangeably and with the same effect."' Gay Oil Co. v. Roach (1910) 93 Ark. 454, 125 S. W. 122, 137 A. S. R. 95, 27 L. R. A. (N. 8.) 914. In Thomas v. Cook (1828) 8 Barn. & Cress. 728, Bayley, J., unnecessarily to the decision of the facts before the Court, said: “A |