Guaranty, Affidavits, Agency
( Originally Published 1918 )
A Guaranty is a promise or undertaking to pay the debt of another in case the Iatter does not pay it.
Names of Parties.—The person who makes the promise is called the guarantor, the person in whose behalf the promise is made, the principal, and the person to whom the promise is made, the guarantee.
Who Are Guarantors.—Every surety is a guarantor and every indorser of a negotiable instrument is in fact a guarantor, but with peculiar rights and duties not known to common guarantors. (See Negotiable Notes.)
Consideration.—Like every other binding promise a guaranty must be founded upon a good consideration, but it is sufficient, however, if the person for whom the guarantor becomes surety receives a benefit, or the person to whom the guaranty is given suffer inconvenience, as an inducement to the surety to become guarantor for the principal.
Must Be in Writing.—Being a promise to pay a debt of another, a guaranty is required to be in writing. (See Contracts.) But where one who promises to pay the debt of another receives therefor an independent consideration, the promise is deemed a promise to pay his own debt, and need not be in writing. Thus, if two parties go together into a shop or warehouse, and upon one selecting and giving an order for goods, the other engages verbally to pay for those goods in case the other does not, in whatever form of words that promise is given, he is not bound by it it must be reduced in writing and signed by the guarantor.
Any Material Change in the extent, terms, or character of the principal's liability discharges the guarantor, even though the change be in no way injurious to him. He may assent to it, how-ever, and will then be liable.
Where there are several guarantors, and one of them is obliged to pay the debt, he can look to the others for their proportion.
Indemnity.—A guarantor ought: to take care to be indemnified against loss, in the event of being called on to pay the debt. With this view indemnities are given (frequently but not always or necessarily, by bond), holding harmless one who, under an undertaking to be responsible for the debt or engagements of another, becomes chargeable or liable for the debt.
Guaranty Companies.—There are companies which transact a guaranty or surety business, from whom, for a consideration, persons on assuming a place of financial responsibility where an indemnity bond is required, can obtain the necessary bond.
Guaranty for the Performance of a Contract
For a good and valuable consideration, by us received, we, the undersigned, do hereby guarantee a faithful compliance with the terms of the above (or within) agreement upon the part of the said contractor, Richard Unger.
Done at Elkhart, Elkhart County, State of Indiana, this —day of—, A. D.19—.
WALTER HANKINS, [SEAL]
Signed, sealed, and delivered in the presence of
WILLIAM LOWER, CHARLES ANDREWS
Guaranty for the Purchase of a Horse
Omaha, Nebraska, —, 19—.
In consideration of One Hundred and Twenty-five Dollars for a black mare, I hereby guarantee her to be only five years old, sound, free from vice, and easy to ride or drive. CHAS. HOWLAND.
[N. B.—ln this guaranty the seller will be held for all the defects in the animal at the time of sale. This is the safest way for one who is not an experienced judge of horses to purchase one.]
Guaranty for a Debt Not Yet Incurred
Rochester, N. Y., —, 19-.
MESSRS. SANFORD & BARTH,
GENTLEMEN : The bearer of this, Mr. R. J. Walker, of this city, is on the point of visiting your city for the purpose of buying goods, and desired articles in your line. He is considered worth some thirty thousand dollars, and such is our confidence in his ability and integrity, that we hereby guarantee the payment of any bills which he may make with you during this year, to an amount not exceeding five thousand dollars.
WILLIAMS & RYAN.
Guaranty of a Debt Already Incurred Reading, Pa., —, I9---.
THE PITTSBURG MANUFACTURING CO.,
GENTLEMEN : In consideration of One Dollar, paid by yourselves, the receipt of which is hereby acknowledged, I guarantee that the debt of three hundred dollars, now owing to you by Henry Wilcox, shall be paid at maturity.
An Acknowledgment is a declaration, before an authorized officer, of a party who has executed a deed or other document, that it is his free and voluntary act.
The officer before whom the acknowledgment is made certifies to the fact of such declaration and to his knowledge of the person so declaring.
The Object of an Acknowledgment is to authorize the acknowledged deed or other instrument, as the case may be, to be given in evidence without further proof of its execution and also to entitle it to be recorded.
Seals or their equivalent are necessary in Alaska, Connecticut, Delaware, District of Columbia, Florida, Idaho, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Oregon, Pennsylvania, South Carolina, Vermont, Virginia, West Virginia,. Wisconsin, Wyoming. In almost all states deeds by corporations must be under seal.
Forms are prescribed or indicated by the statutes of most of the states except Connecticut, Florida, and Louisiana, but a substantial compliance with the words of a statute is sufficient. Though the precise form prescribed be not followed, yet all the essential requirements of the acknowledgment must be adhered to.
Must Not Be Altered.—A certificate of acknowledgment when once made cannot be legally changed by the officer taking the acknowledgment or by anyone without a reacknowledgment.
Separate Acknowledgment by Wife is required in Alaska, Arkansas, Delaware, District of Columbia, Florida, Georgia, Idaho, Kentucky, Louisiana, Montana, Nevada, New Jersey, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, and Texas.
What Instruments Must Be Acknowledged.—All deeds and conveyances of land, to be effectual as to third parties, must be recorded upon previous proof or acknowledgment of their execution. In some of the states, chattel mortgages must be acknowledged and recorded the same as deeds.
Before Whom Taken.—Within the several states acknowledgments may be taken in general before notaries public and justices of the peace within their territorial jurisdiction. In some states other officers are especially empowered by statute to take acknowledgments.
Outside the State and Outside the United States.—The statutes of each state provide for the taking of acknowledgments outside the state by notaries public, justices of the peace and commissioners appointed for the purpose by the authorities of the state where the land lies. (See "Deeds" for forms in several states.) In foreign countries they should be taken by an American consul, under seal of the consulate.