Furst v. McNitt

Citations

• 104 Kan. 245
• 178 P. 411
• 1919 Kan. LEXIS 235

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Guaranty — Performance of Contract — Action—Joinder of Guarantors and Principal Obligor. Under section 38 of the code of civil procedure (Gen. Stat. 1915, § 6928), guarantors who are only secondarily liable on a written obligation may be joined as defendants in an action against the principal obligor, and the rights of the guarantors can be equitably and adequately safeguarded in the judgment by directing execution against the property of the principal obligor and exhausting that source of satisfaction before issuing execution against the property of those secondarily liable.</p> <p>2. Same — Right of Action against Unconditional Guarantors. Where a guaranty is unconditional, the default of the party whose contracts, fidelity or conduct is guaranteed, matures the liability of the guarantors, and they may be proceeded against without awaiting a fruitless execution against the defaulting principal.,</p> <p>3. Same. Where a principal obligor is admittedly insolvent, an indem-, nified party may proceed at once against such obligor’s guarantors, without first pursuing a futile action against the principal.</p> <p>4. Same — Pleadings—Joinder of Defendants — Single Cause of Action. Appropriate allegations narrating the execution of an undertaking guaranteeing the performance of a contract, the default of the principal obligor, and the default of the guarantors, recite facts which state essentially but one cause of action against the principal and guarantors, and, as against a demurrer, there is neither misjoinder of parties nor of causes of action therein.</p> <p>5. Same — Want of Diligence — Guarantors Not Released. Want of diligence in prosecuting claims against a principal obligor will not relieve guarantors who bound themselves specifically and in writing that extension of time to the principal obligor should not relieve them from liability.</p> <p>6. Same — Guaranty May be Revoked by Guarantor. A guaranty of faithful perform