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McMullan v. Gurganus

Filed: January 5, 1982.

NEVA S. MCMULLAN, PLAINTIFF
v.
FRED W. GURGANUS, DEFENDANT AND J. VERNON GURGANUS AND DORIS GURGANUS, SURETIES



Appeal by sureties from Brown, Judge. Judgment entered 26 November 1980 in Superior Court, Beaufort County. Heard in the Court of Appeals 19 November 1981.

Clark, Judge. Judges Whichard and Becton concur.

Clark

The sureties present one argument for consideration. They contend that they are not liable on the bond because the bond was conditioned upon a stay of execution against defendant's property, and plaintiff later breached that condition by executing on the judgments.

The bond contained the following language:

"Whereas the above-named plaintiff instituted suit against the defendant and said suit resulted in a judgment for the plaintiff in the amount of $11,931.51;

And whereas, the defendant desires to give bond to stay execution;

We, and each of us, acknowledge ourselves bound unto Neva S. McMullan, the plaintiff herein named in this action, in the sum of $11,931.51 together with the cost of this action and interest thereon from February 11, 1980, to be void, however, if the within named defendant, Fred W. Gurganus, shall pay said sum to Neva S. McMullan, the plaintiff.

Witness our hands and seals this 17th day of April, 1980.

s/ J. Vernon Gurganus (Seal)

s/ Doris W. Gurganus (Seal)"

A surety is a person who is primarily liable for the payment of a debt or performance of an obligation of another. A surety's liability is independent of any default by the debtor. Trust Co. v. Creasy, 301 N.C. 44, 269 S.E.2d 117 (1980). "Where a surety seeks to avoid liability on the ground that his undertaking was delivered conditionally and the conditions were not performed, the courts ordinarily apply one of two rules, depending on the facts presented: When the surety's undertaking is complete and regular on its face and the obligee has no notice of conditions imposed by the surety, the surety will be liable; on the other hand, when the undertaking is so incomplete on its face as to suggest nonperformance of some condition imposed by a surety, it carries notice to the obligee and relieves the surety." 74 Am. Jur. 2d Suretyship ยง 124 at pp. 87-88 (1974).

The language used in the bond executed by sureties clearly binds sureties to pay plaintiff in the event their son, the defendant, fails to pay the judgment. The only question is whether the language "And whereas, the defendant desires to give bond to stay execution" is sufficient to give plaintiff notice that sureties intended their liability to be conditioned upon stay of execution of the judgment against defendant. We think that this statement expressing defendant's desire to ...


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