184. Contract of a Surety. A surety is one who unconditionally promises to answer for the debt or obligation of another. For example, A gives the following promissory note to B:
Chicago, Ill., Jan. 2, 1908.
Thirty days after date I promise to pay to the order of B—Five Hundred Dollars.
Signed—A.
Signed—C, Surety.
This note constitutes an obligation of suretyship in which B is creditor, A is principal, and C is surety. C's obligation is the same as that of A, his principal. By signing this note as surety, C binds himself to pay the note when due. He does not bind himself to pay on condition that A does not, or cannot pay the note when due, but binds himself to pay the note when due. His obligation is the same as the obligation of A. His obligation is not conditioned upon A's failure or inability to pay. When the note is due, B, the creditor, may bring suit against C, the surety, disregarding the principal, A. B may bring suit against C, the surety, without making any demand of payment of A, or without receiving A's refusal to pay. If the note is signed by C as above, without using the word, surety after his name, it may be shown by oral testimony that C signed as surety, if such is the fact. A surety may sign any kind of a contract as surety for another. In this event, his obligation is to do the same thing that his principal contracts to do. If the obligation of the one signing as security is conditioned upon anything, it is not the obligation of a surety, but that of a guarantor, no matter by what term designated in the contract. It has been said by some writers that a surety promises to pay the debt of another if the other does not, and a guarantor promises to pay the debt of another if the other cannot. This definition is not correct and is not supported by the cases. This definition applies only to guarantors, since it is a conditional promise to pay the debt or obligation of another. A surety's obligation is absolute, and not conditional in any way upon the failure or inability of the principal debtor to pay. In commercial practice, the contract of a surety is infrequently used as compared with the obligation of a guarantor.
A 40-FOOT WIDE MACHINE TOOL BAY IN THE CLAREMONT, N. H., FACTORIES OF THE SULLIVAN MACHINERY COMPANY
185. Contract of a Guarantor. Anyone who agrees to answer for the debt, default, or obligation of another upon condition that the other does not or cannot pay the debt, or upon any condition whatever, is a guarantor. For example, A gives B the following promissory note:
Cleveland, Ohio, Nov. 27, 1909.