Daniel Dole versus Darius Young, 24 Pick. 250

Shaw C. J. delivered the opinion of the Court. It was contended, on the part of the plaintiff, that this was an original contract on the part of the defendant, to pay for goods delivered to Wetherbee, and therefore that no demand of Wetherbee, or notice to the defendant, was necessary. But on this part of the case the Court are of opinion, that the contract contained in the written paper set forth in the agreed statement, was a collateral undertaking to pay, in case that Wetherbee should not, and was therefore strictly a guaranty for the debt of another.

This is the primary meaning of guaranty, though it may be readily conceded, that the word may be used in such a connexion with other words, as to constitute an original con tract. Supposing this to be the character of the contract, the defendant contends, that he is not responsible, because the plaintiff did not make reasonable demand of payment of Wetherbee, and give immediate nptice of non-payment to the defendant.

In the first place, it seems exceedingly clear, that the plaintiff, by delivering the goods to Wetherbee, immediately after the presentation of the order, acted upon the proposition therein contained, and thus the contract of guaranty was completed. In the case of Oxford Bank v.

Haynes, 8 Pick. 423, it was decided, that in order to maintain an action against a guarantor, a demand of payment must be made in a reasonable time of the principal, and notice of non-payment given to the guarantor, and if in consequence of want of such reasonable notice, the guarantor is prevented from getting his indemnity of his principal, or otherwise suffers a loss, he shall be exonerated. The same promptness in making demand and giving notice are not required as in case of notice to charge an indorser, which depends upon the law merchant, and is governed by its own peculiar principles.

In the present instance, we think the case shows, that there was evidence from which it may be fairly inferred, that the defendant had notice within a few days after the credit expired, and this was within reasonable time. The principal testified to a demand made by the plaintiff on him, by letter. This demand was sufficient. It was the duty of the principal to come and pay his debt, and his failure to do so on notice by letter, was a default, which rendered the defendant liable on his guaranty.

There was evidence tending to show, that a letter, containing notice of non-payment, was addressed to the defendant about the same time, through the post-office, and the defendant admitted, in effect, that he had notice of the non-payment, within five or six days after the credit expired. It was objected to this admission, that it was made after the action brought; but there is no force in this objection. It is wholly immaterial when the admission was made, it being of an anterior fact, occurring before the action was brought.

This renders it unnecessary to consider another answer to this defence, which seems to be well sustained, which is, that the defendant suffered no loss by want of notice, it being testified that the principal was insolvent, as well when the guaranty was entered into, as when the action was commenced. Judgment for the plaintiff.