ALBERT B. LUCKEY, JR., ADMINISTRATOR OF THE ESTATE OF ALBERT B. LUCKEY, SR., DECEASED, APPELLANT,
v.
JAMES E. THORNTON, CLIFFORD A. SMITH AND DODGE INCORPORATED, AN ILLINOIS CORPORATION, APPELLEES
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In this guaranty contract action, the court determined that Dodge Incorporated's guarantee was one of payment rather than collectibility, meaning the guarantor could be held liable without the creditor first exhausting remedies against the principal obligors. The trial court erred in requiring diligence against the principal obligors as a condition precedent to recovery.
The guaranty was a guaranty of payment, not collectibility, and therefore was enforceable without the creditor first exercising diligence against the principal obligors. The notice of default provision did not convert it into a conditional guaranty of collectibility.
“The former is enforceable without first exercising diligence by proceeding against the principal obligor as required in the case of a guaranty of collectibility.”
Establishes the key distinction between guaranty of payment and guaranty of collectibility that determines whether diligence against principal obligors is required.
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Join FLexlaw to unlock all legal intelligenceAlbert Luckey approved the assignment of a sublease to James E. Thornton and Clifford A. Smith, covering boat storage premises in Miami. Dodge Incorpo…
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In an action on a guaranty contract, which was tried without a jury, judgment was entered for the defendant and the plaintiff appealed.
The determinative question is whether the instrument sued on was a guaranty of payment or was a guaranty of collecti-bility. The former is enforceable without first exercising diligence by proceeding against the principal obligor as required in the case of a guaranty of collectibility. *411See Fegley v. Jennings, 44 Fla. 203, 42 So. 873. The instrument involved in this case was as follows:
“In consideration of the approval of and consent to the assignment of that certain sublease between ALBERT LUCKEY, also known as AL. B. LUCKEY, as Sublessor, .and RAYMOND F. ZABRISKIE and CLARENCE L. ZABRISKIE, Sublessees, dated October 1, 1950, by BEACON MARINE CORP., a Florida corporation, the present holder thereof, by assignment to JAMES E. THORNTON and CLIFFORD A. SMITH, covering the premises occupied by BEACON BOAT STORAGE at 260 S. W. North River Drive, Miami, Florida, and of the sum of One ($1.00) Dollar to the undersigned in hand paid by the said LUCKEY, the undersigned DODGE, INCORPORATED, an Illinois corporation, hereby guarantees to the said ALBERT LUCKEY, also known as AL. B. LUCKEY, his heirs, executors, and administrators and assigns, the payment of the rental provided for in the aforesaid lease and the performance of all provisions of said lease by the said JAMES E. THORNTON and CLIFFORD A. SMITH, PROVIDED, that notice of any default therein by the said THORNTON and SMITH shall be given by the said LUCKEY to the undersigned in writing at 380 N. E. 60th Street, Miami, Florida, but such notice of default shall not be deemed requisite if the said LUCKEY shall desire to extend the time for the performance of any of the terms and conditions of said sublease.
“IN WITNESS WHEREOF, the undersigned corporation has caused these presents to be signed by its President and its corporate seal to be hereunto affixed this 31st day of December, 1953.”
While the judgment does not state the ground upon which it was granted, the record shows the ground was want of such diligence by the plaintiff. In so holding the trial judge was in error. The language of guarantee here was not conditioned, and it was entitled to be construed as a guarantee of payment. The provision therein for notice of default did not make it otherwise. No time was provided within which such notice should be given, and the record reflects that notice of default in fact was given. John S. Barnes, Inc. v. Paducah Box & Basket Co., 147 Fla. 362, 2 So.2d 861.
Accordingly the judgment is reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Flagship Bank OF Orlando v. Jackson Bryan, 384 So. 2d 1323 (Fla. 5th DCA 1980)…can be collected only once, and any payment on any of the judgments must be credited to the others. Fegley v. Jennings, 44 Fla. 203, 32 So. 873 (1902); Anderson v. Trade Winds Enterprises Corp., 241 So. 2d 174 (Fla.4th DCA 1970); Luckey v. Thornton, 171 So. 2d 410 (Fla.3d DCA 1965). .Lassitter v. Intern. Union of Op. Engin., 349 So. 2d 622 (Fla. 1976).…
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Ades v. Bank OF Montreal, 542 So. 2d 1013 (Fla. 3d DCA 1989)…ryan, 384 So. 2d 1323,1324, n. 3 (Fla. 5th DCA 1980); see also Fegley v. Jennings, 44 Fla. 203, 32 So. 873 (1902); Anderson v. Trade Winds Enter. Corp., 241 So. 2d 174 (Fla. 4th DCA 1970), cert. denied, 244 So. 2d 432 (Fla.1971); Luckey v. Thornton, 171 So. 2d 410 (Fla. 3d DCA 1965). Thus, the interest charged was not duplicative. Accordingly, the final judgment entered in favor of the Bank of Montreal is affirmed.…
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Craig v. 60 Minute OF Miami, Inc., 267 So. 2d 94 (Fla. 3d DCA 1972)…payment and performance given in consideration of the consent for assignment was actionable against them upon default by the assignee of the lease without necessity to proceed or to first proceed against the latter. Luckey v. Thornton, Fla.App.1965, 171 So. 2d 410. The principle has been consistently applied in cases involving guaranty of payment of promissory notes, e. g. Anderson v. Trade Winds Enterprizes Corp., Fla. App. 1970, 241 So. 2d 174; Quarngesser v. Appliance Buyers Credit Corp., Fla. App. 1966, 1…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fegley v. Jennings, 44 Fla. 203 (Fla. 1902)
- John S. Barnes, Inc. v. Paducah Box & Basket Co., Inc., 147 Fla. 362 (Fla. 1941)