Whiting v. Clark

Citations

• 17 Cal. 407

Syllabus

<p>A creditor, having legally fixed the liability of a guarantor, is not bound to sue the debtor in order to hold the guarantor—at least, not until requested by the guarantor. The guarantor, if he wish to protect himself from loss, should pay the debt, and then sue the principal, or file a bill to compel the creditor to sue.</p> <p>Where plaintiff claimed on a written guaranty by defendant for goods sold and delivered, and charged to one P., and defendant plead that no suit had been brought by plaintiff against P., and that the Statute of Limitations of one year had barred the claim as against P.: Held, that the statute is no defense; that by the guaranty defendant became the debtor of plaintiff; and that no limitation could defeat the action, except that prescribed for the class of indebtedness evidenced by the written guaranty.</p> <p>Where interest was improperly allowed on a running account, but no objection taken for that reason to the judgment or finding of the referee : Held, that the judgment will not be reversed.</p>