(dissenting).
I dissent. The majority opinion results in a rule that requires all guarantors to be sued in the first instance with their principals,
1. no matter what rights they have signed away, and
2. even if the guarantors have waived such rights by agreeing in writing for valuable consideration to be sued separately.
It is generally recognized that the rule against splitting a cause of action is primarily for the benefit of the defendant, and that he may permit plaintiff to split the cause of action. If the court determines that defendant has expressly or implicitly consented to the splitting of the cause of action, defendant is held to have waived the right to- assert res judicata. North Carolina Elec. Membership Corp. v. White, 722 F.Supp. 1314, 1321 (D.S.C.1989). See Restatement (Second) of Judgments § 26 cmt. a (1982) (commenting that while the main purpose of the rule against claim splitting is to protect the defendant from being harassed by repetitive actions based on the same claim, the rule does not apply where the defendant consents, in express words or otherwise, to the splitting of the claim). See generally 1 Am.Jur.2d Actions § 113 (1994) (“A person against whom a cause of action exists may agree to the splitting of the cause of action, thereby waiving the protection of the general rule against splitting causes of action.”); Joseph E. Edwards, Annotation, Waiver Of, By Failing To Promptly Raise, Objection To Splitting Cause Of Action, 40 A.L.R.3d 108 (1971) (“The rule precluding splitting of a cause of action is founded upon the principle that no person should be unnécessarily harassed with a multiplicity of suits. But it is generally recognized that the rule against splitting a cause of action is primarily for the benefit of the defendant, to protect him against a multiplicity of suits, and that he may agree to a splitting of the cause of action, in which case the court will respect the agreement, and by his conduct he may be held to have waived his right to insist upon the rule.” (Emphasis added.)). Restatement (Second) of Judgments § 26 (1982) provides in part:
(1) When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possi*923ble basis for a second action by the plaintiff against the defendant:
(a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein[J
When Benning signed the guaranty, he “contracted away” any right he may have had to the affirmative defense of res judica-ta.* See generally First Fed. Sav. and Loan Assoc. v. Clark Inv. Co., 322 N.W.2d 258 (S.D.1982). (“[T]his Court held that a mortgagor can contract away its right to rents and profits.” Aetna Life Ins. Co. v. McElvain, 363 N.W.2d 186, 191 (S.D.1985) (citing First Fed., 322 N.W.2d 258).) The guaranty provided in part:
The undersigned does hereby consent that without affecting the liability of the undersigned under this guaranty and without notice to the undersigned, ... the Landlord may avail itself of or exercise any or all of the rights and/or remedies against the Tenant provided by law or by said lease, and may proceed either against the Tenant alone or jointly against the Tenant and the undersigned or against the undersigned alone without proceeding against the Tenant.
Clearly, under the terms of the guaranty, Benning waived his right to assert the defense of res judicata by agreeing to allow Wintersteens to proceed against the tenant, DLF, alone, without affecting his liability. This court should respect the agreement and affirm the trial court’s determination that Benning cannot assert the affirmative defense of res judicata against Wintersteens’ action for attorneys’ fees.
I do not concede that res judicata would apply even if it could be asserted. The main reason for this position is that the issue of attorneys’ fees was not decided in the prior action because it arose out of a separate agreement — the guaranty — -between different parties. Because I conclude, however, that Benning "agreed in terms” that Wintersteens could split their claim, it is not necessary to reach the issue of whether res judi-cata would otherwise apply. See Imperial Constr. Mgt. Corp. v. Laborers Int’l. Union of North America Local 96, 729 F.Supp. 1199, 1205 (N.D.Ill.1990).