National Bank v. Thomas

Citations

• 220 Pa. 360
• 69 A. 813
• 1908 Pa. LEXIS 784

Syllabus

<p>Guaranty — Principal and guarantor — Continuing guaranty — Intention —Evidence.</p> <p>Whether a contract of guaranty is a continuing undertaking, is a question of intention which must be gathered from the instrument itself, or from the course of dealings between the parties, or from both. If it appears that a future course of dealing for an indefinite time, or a succession of credits to be given is contemplated by the parties, the contract will be construed to be a continuing guaranty.</p> <p>Where a father obligates himself in writing to guarantee a bank against any loss on any personal loans made to his son, or on account of any business paper discounted, to amounts respectively designated, and it appears that at the time of the execution of the guarantee, the bank had already made personal loans to the son and discounted paper for him less in each instance than the amount stated in the guarantee, and where the course of dealing so indicates, the court will construe the guaranty as a continuing one, covering not only past but future transactions.</p> <p>Where it appears a principal debtor is insolvent so that a legal proceeding against him would be fruitless, it is not necessary for a creditor to institute such a proceeding in order to hold a guarantor liable.</p> <p>Where in an action upon a guaranty no question is raised in the court below as to whether the creditor had used due diligence in pursuing the debtor, such question cannot be considered for the first time on appeal.</p>