*417The opinion of the court was delivered by
Dunbar, C. J.Appellant’s first contention is, that the court erred in overruling the demurrer of Thompson and Drum to the complaint. We think the complaint states a cause of action against all of the defendants. There is possibly more stated in the complaint than was necessary to state in an action at law, but it is plain that the object in the particularity of statement and recitation of the different instruments in writing was to present a state of facts showing the relation of Savage, Thompson and Drum to the plaintiffs, a condition which, if true, would make each of the defendants principals in the purchase alleged, and equally bound. Neither do we think there is any oral statement tending to dispute the written agreement. The statements are simply supplementary. The parties had a right to make the contract alleged in the complaint to have been made, and to make any arrangement of convenience which they saw fit, and there is nothing contradictory between the written obligation and the allegations of the complaint. The allegations simply explain the reasons for the form of the contract.
Much has been said in the briefs, and many cases cited showing the respective liabilities of guarantors and insurers, but we have been unable to obtain any light from such citations, for even conceding that Thompson and Drum are guarantors, under all the authorities they are absolute guarantors, and are absolutely bound. The bond which they all signed and executed was, after reciting the debt, as follows:
“Now, then, the undersigned agree to be bounden unto said William B. Hanna and Mollie Hanna for the full sum of S17.141.00, with interest as specified in said note and mortgage, if said Savage shall fail to pay the same,” etc.
Here is an absolute obligation for the payment if Sav*418age fails to pay; not a guaranty that the money can be made out of Savage by due diligence, but a plain obligation that they will pay it if Savage does not. This distinction is made clear by Randolph on Commercial Paper, §850:
‘ ‘ A guaranty, ’ ’ says the author, ‘ ‘ may be absolute, that is, for the payment of the bill or note; or conditional, that is, a guaranty that it is collectible by due diligence. One who guarantees payment becomes absolutely liable on any default of payment by his principal.”
And Daniel on Negotiable Instruments, §1769, states the rule thus:
“If A guarantees, expressly or by implication, to pay the note of B to C, provided B does not pay it, he becomes absolutely, liable for its payment immediately upon B’s default, and is, therefore, deemed an absolute guarantor of the due payment of the note by B to C. But if A guarantees the collectibility or goodness of B’s note to C, he does not absolutely guarantee its payment, but only that he will pay it in the event that C shall test the collectibility or goodness of the note by regular prosecution of suit against B, and shall be. unable,- by due and reasonable diligence, to enforce its payment. And, accordingly, he is only deemed a conditional guarantor of payment.”
But in this case the complaint plainly shows that this instrument was entered into as a joint and concurrent contract. The several instruments were all of the same date. The whole contract took effect at one and the same time, as different parts of one entire transaction; consequently the principals and sureties are to be deemed joint contractors, and joint makers of the note. Story on Promissory Notes, § 467.
Appellants also complain of the lower court in granting the motion for judgment on the pleadings. We think this contention is equally untenable. The complaint alleges that appellants were in possession at the time the action *419was commenced. This allegation is not really denied. They not only do not deny their possession at the time of the commencement of the action, but they expressly allege that they offered to rescind in a reasonable time, and to re-convey, and that the respondents unjustly refused, and still refuse, to comply with the demands of the defendants in every particular.
Construing all the allegations of the answer together, there is, in our judgment, no denial of the material allegations of the complaint, and the judgment will, therefore, be affirmed.
Scott, Stiles, Anders and Hott, JJ., concur.