Clark v. Chapman

Citations

• 98 Cal. 110
• 32 P. 812
• 1893 Cal. LEXIS 868

Syllabus

<p>Arbitration—Guaranty—Erasure of Name of Party from Agreement to Arbitrate—Misdescription in Undertaxing—Immaterial Variance.—Where an undertaking guaranteed the payment of any sum found due to one of the parties to an agreement of arbitration, and to indemnify him against loss by reason of the surrender of property to the arbitrators, and described the agreement of arbitration accurately, excepting that it mentioned the name of another person as party to the agreement, whose name had been erased therefrom with the mutual consent of all the parties thereto, and it appeared that the attorney for the guarantor witnéssed the erasure, that the matter was arbitrated without objection, and that the person indemnified by the undertaking surrendered property in his possession pursuant to the agreement of arbitration, no substautial variance is shown between the agreement of arbitration and the undertaking which could mislead the guarantor, the variance not being as to the measure of his liability, but merely as to the identity of the agreement upon which the guaranty was founded.</p> <p>In.—Consideration of Guaranty.—The contract-of guaranty in such case is supported by the consideration of the execution and filing of the agreement of submission, notwithstanding the variance in the description of that agreement, and also by the surrender to the arbitrators of the property therein provided to be surrendered by the person for whose benefit the contract of guaranty was made,</p> <p>Id,—Re-imbursement of Guarantor—Subrogation—Assignment of Judgment against Principal—Condition of Recovery.—A guarantor, like a surety, is entitled to be re-imbursed by enforcing any remedy which the creditor then has against his principal, and if ho satisfies a judgment obtained against him upon the guaranty, he will be entitled to an [assignment of a judgment rendered in favor of the obligee to whom the guaranty was given against the principal obligor; but such assignment is not a condition prec