Butte Mach. Co. v. Carbonate Hill Mill. Co. Book Reviews

Butte Mach. Co. v. Carbonate Hill Mill. Co. by Supreme Court of Montana Book Summary

Contracts ? Guaranty ? Misjoinder of Parties Defendant. Guaranty ? Surety ? Distinction ? Joinder of Parties Defendant. 1. Under a contract of guaranty the promisor is bound independently of the person for whose benefit it is made, his engagement being a collateral undertaking; hence there being neither privity of contract, mutuality nor joint liability between the principal debtor and the guarantor, they cannot be joined as defendants; under that of suretyship the surety is bound as an original promisor and the creditor may bring his action jointly against him and the debtor. Contracts ? Leases ? Guaranty of Rentals ? Inconsistent Provisions of Contract ? Misjoinder of Parties Defendant. 2. Where under the first clause of a contract a party bound himself generally as a surety, but under a subsequent one the conditions under which he would be liable were particularly set forth which in effect made him a guarantor, the two clauses were so inconsistent with each other as to warrant application of the doctrine announced by section 10520, Revised Codes of 1921, that where a general and particular provision of a contract are inconsistent the latter must prevail, and therefore the promisor was a guarantor and not a surety and could not be joined as defendant with the lessee of property in an action to recover rentals, payment of which he had guaranteed. (See par. 1, above.)

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