Outlines of Suretyship and Guaranty

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Callaghan and Company, 1927 - 620 страница

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Nondisclosure by the obligee of material facts
34
Guaranty of payment and guaranty of collectibility
36
Failure of the principal to execute
57
Liability of surety who signs after signature of previous party is forged 37 Incomplete instruments
58
CHAPTER III
60
Special promise 41 Debt default or miscarriages 42 Of another person 43 Must the consideration be in writing?
65
The memorandum 45 Special promise to the debtor
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 theory
81
The main purpose rule
82
View of the Supreme Court of the United States
87
The true test
89
61 The property cases
91
The document cases
92
The del credere cases
95
Résumé of main purpose rule 65 Cases involving socalled indemnity contracts
96
Comparison of Thomas v Cook and Green v Cresswell
100
Reader v Kingham
103
Wildes v Dudlow
105
Was the promise to the debtor in Green v Cresswell
106
The effect of the statute of frauds upon promises to indemnify
110
Differences between contracts of indemnity and contracts of guar anty
112
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
121
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 83 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
Is the obligee required to notify the guarantor both of the exten sion of credit and that principal has defaulted?
129
Conclusion as to notice of acceptance 89 Effect of guarantors death on guaranty for a definite period
130
Revocation of the undertaking
132
Termination where no definite time is expressed
133
CHAPTER V
135
Agreement between creditor and principal to extend time to prin cipal on nonnegotiable instruments
138
Agreement to extend time to principal on negotiable instruments
142
Agreement to extend time made between creditor and a third person
145
Release of principal reserving rights against sureties
146
Conditional agreement to extend time
148
Extension for uncertain time
149
Where the surety is indemnified
150
The creditors ignorance of the existence of the suretyship relation 102 Extension of time as affecting a compensated surety
152
Extension of time to the principal in a criminal case
153
Duty of the obligee to the mortgagor or retiring partner
154
The effect of agreements between the obligee and one surety on cosureties
157
Judgment in favor of the principal 107 Addition of parties to an instrument
159
The creditors duty to the principals collateral
161
Loss of liens
163
Loss of rights in mortgaged property
166
Loss of rights in pledged property
167
The effect of a judgment upon the debtors realty
168
The effect of a judgment upon the debtors personalty 114 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
CHAPTER VI
192
The doctrine of Pain v Packard
193
Majority view
194
The suretys rights in equity prior to payment of the principals debt
195
Exoneration
198
Basis for exoneration
199
Leading cases on exoneration
200
Marshaling securities
202
The volunteer
214
The surety as a petitioning creditor
219
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
Whether sureties must sue the principal jointly 157 Volunteer sureties 158 The amount of recovery
239
Acts of officer under void process
250
Payment by the surety giving his note
251
Ability required of officials
252
Payment by instalments
253
Setoff
254
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
sureties CHAPTER XIV
258
Setting aside the forfeiture
267
Right of the surety against the principal
268
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
Bonds of public administrators
273
Sureties on successive appeal bonds
274
Duties of a personal representative breach of bond waste
275
The qualifications of a surety
276
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
Bond given in improper capacity
280
Bonds not complying with the statutory requirements
281
The liability of sureties inter se where there are successive bonds
282
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
290
Successive appeals
291
Where the paying surety is responsible for the principals default 185 Release of securities or liens
292
Where the paying surety is indemnified
293
Plaintiffs bond to procure attachment
294
Contribution and indemnity may coexist
295
Contribution for costs attorney fees or damages
296
Setoff
298
CHAPTER X
299
Tolling the statute by one coobligor Whitcomb v Whiting
302
Second view
306
197 The effect of the statute of limitations on contribution between
312
to surety
319
Special judgments against sureties
325
Suretys liability after discharge of principal in bankruptcy
331
210 Liens obtained by legal proceedings
337
Is the surety who has paid the creditors claim in part entitled
347
owned by surety to estate of bankrupt principal
350
Release of surety by payment to creditor that is later held to have been preferential
353
Is the suretys claim barred by the principals discharge in bank ruptcy?
354
Staying the creditors action against the bankrupt and his surety
355
Staying the bankrupts discharge
356
Recovery of preferences given by the principal to the surety
358
CHAPTER XII
359
Classes of corporate guaranty contracts 228 Differences between corporate and individual surety
361
Interpretation of the contract of guaranty
362
Strictissimi juris inapplicable to contracts of the compensated sure
365
Agreement that amount paid to obligee is conclusive of the amount of indemnity recoverable against principal
367
Differences between contracts by compensated surety and insur ance contracts
368
Defenses of gratuitous surety
372
Defenses of compensated surety on fidelity bonds
373
Defenses of compensated surety on contractors bonds
376
Extension of time by agreement between obligee and principal
377
Right of compensated surety to subrogation and contribution
379
Surety companys right to retain profits from performance of the principals contract
381
Effect of legislative provisions upon the corporate surety
382
The right of the state to prescribe rates
384
Ultra vires contracts of guaranty
385
Basis for law governing the compensated surety
386
CHAPTER XIII
388
Official bonds
389
Formal requisites of statutory bonds
391
The effect of alteration of an official bond 246 Continuance of official bonds
392
Bonds of de facto officers
393
Misfeasance and nonfeasance of officials 249 Acts done colore officii and those virtute officii
394
Bonds to release property forthcoming or delivery bonds
413
executors and their sureties where a joint or joint and several bond is given
460
The proper procedural steps
462
Final settlement as judgment 286 Proceedings in review
464
Appeal bonds
466
Failure to comply with statutory requirements as to appeal bonds 289 Breach of the appeal bond
468
Bonds to release the attachment
478
Remedies available to defendant in attachment
479
Replevin
481
The plaintiffs bond
483
Breach of plaintiffs bond 301 Damages recoverable on replevin bonds
484
Obligors liability where return of property is impossible
486
Redelivery bonds in replevin actions 304 Injunction bonds
487
Amount recoverable upon the bond
489
Receivers bonds
491
Sureties liability on receivers bonds
492
308 The effect upon the surety of judgment against the receiver
493
Guardians
495
Bonds of guardians
496
Breach of the bond
497
Settlement by guardian
499
Effect on the sureties of judgment against the principal 314 Release of the sureties PAGE
503
APPENDIXForms of bonds
505
TABLE OF CASES
521
INDEX
563
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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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