UNITED STATES SUPREME COURT DECISIONS ON-LINE

Where there was a contract for furnishing a steam engine, the following guaranty was made:

"For value received, I hereby guaranty the performance of the within contract, on the part of Hopkins & Leach, and in case of nonperformance thereof to refund to Messrs. Hillard & Mordecai all sums of money they may pay or advance thereon, with interest from the time the same is paid."

This contract is not in the alternative, but consists of two terms -- one, that the principals shall perform their engagement, not merely by the delivery of some machinery, but of such machinery as the contract includes; the other that if there be a nonperformance, whether excusable or not, the money advanced on the contract shall be secured to the plaintiffs to the extent to which the principals are liable.

An acquiescence of both parties in the prolongation of the time within which the contract was to be fulfilled will not operate to discharge the guarantor. There was no change in the essential features of the contract, and if the parties choose mutually to accommodate each other so as better to arrive at their end, the surety cannot complain.

So where the machinery delivered was imperfect and the two contracting parties had exchanged receipts, but the imperfection was afterwards discovered and the recipients of the machinery had to expend money upon it, the guarantor is responsible for it.

The defects in the machinery were latent, and could only be ascertained by its use. The settlement between the parties did not embrace the subject to which the warranty applied nor contain any release or extinguishment of the covenants concerning it.

The damages to be found should be such as would enable the plaintiffs to supply the deficiency, and the jury were not required to assume the contract price as the full value of such machinery.

Hillard & Mordecai, the plaintiffs below, of Wilkes Barre, in Pennsylvania, made a contract with Hopkins & Leach, of Elmira, New York, dated September 11, 1847, under seal. Benjamin guaranteed the performance of this contract as follows:

"For value received, I hereby guaranty the performance of the within contract on the part of Hopkins & Leach, and in case of nonperformance thereof, to refund to Messrs. Hillard & Mordecai all sums of money they may pay or advance thereon, with interest from the time the same is paid."

The action was brought upon this guaranty, which resulted in a verdict for the plaintiffs, damages six thousand dollars, and $1,869.15 costs. A motion was made for a nonsuit, which was overruled. The particulars of the case are stated in the opinion of the Court. clubjuris

Page 64 U. S. 162