Whitman v. Winchester Arms Co. ing and the defendants at once wrote to inquire. He replied by postal card, January 29th-"Pay Moores $64.40. Send balance soon to Lewis Whitman." And in reply to a further inquiry from the defendants, he again wrote under date of February 2d-after stating the amount of his indebtedness to the Moores-"Please pay them $64.40 and no more. ** Please send the balance immediately to Lewis Whitman, West Mill Grove, Ohio." They were garnisheed by the Moores on the 6th of February. It is not stated in the correspondence that an assignment of the claim had been made by Williams, nor is there anything in it from which notice of an assignment can be claimed except the direction to "pay the balance to Lewis Whitman." This clearly is not actual notice. Nor can it be regarded as constructive or equitable notice. The latter notice is such as would reasonably put a party on enquiry, and is in equity notice of the facts that the enquiry would have elicited. Bolles v. Chauncey, 8 Conn., 389; Booth v. Barnum, 9 id., 286. Here the enquiry was actually made and no information. was elicited that would have led the defendants to suppose that an assignment of the claim had been made. Wade on Law of Notice, § 5; 1 Story Eq. Jur., § 399; Wilson v. Wall, 6 Wall., 91. H. W. Asher and E. P. Arvine, for the appellee. PARK, C. J. It appears in this case that on the 24th day of January, 1885, the defendants were owing one James G. Williams the sum of two hundred and sixty-two dollars and some cents. At the same time Williams was owing the plaintiff a larger amount, and on the 27th day of the same month he assigned to the plaintiff the indebtedness of the defendants to him. It also appears that Williams was owing a firm named "J. P. Moore's Sons" a large sum, and on the sixth day of February, 1885, Moore's Sons brought suit against Williams and garnisheed the defendants. On the sixth day of November of the same year Moore's Sons recovered judg Whitman v. Winchester Arms Co. ment against Williams, and the next day the defendants paid to the officer serving the execution issued on the judgment the sum of one hundred and eighty-four dollars and some cents, which the defendant sought in this suit to set off against the plaintiff's claim. The principal question on the trial of the case below was, whether Williams gave the defendants notice of the assignment of his claim against them to the plaintiff, before their garnishment by Moore's Sons. The court below found that due notice was so given, and rendered judgment against the defendants; and now they bring the case before this court for review. Ordinarily the question would be one of fact, which this court could not review further than to ascertain whether there was any evidence before the court on which its judgment was based, but the claim is, that inasmuch as it appears on the record that all the evidence on the subject in the trial below appears in the written correspondence. between Williams and the defendants, and inasmuch as the construction of written documents is a question of law, this court can review the question. We are inclined to take this view of the case, and we will therefore consider the correspondence between the parties on the subject. A telegram sent by Williams to the defendants on the 27th day of January, 1885, was as follows:-" Pay Moores sixty-four forty-six. Balance soon Lewis Whitman." The defendants knew that "Moores" meant "Moore's Sons," the firm to which Williams was indebted. The defendants replied to this telegram, and asked for more specific instructions in relation to the balance; and on January 29th Williams sent the following by postal card in reply:-"Yours of January 27th at hand, and in reply will say the message I sent was not exactly as you got it read. Pay Moores $64.40. Send balance soon to Lewis Whitman. Please do as this card implies, and oblige." Again, on February 2d of the same year, Williams sent to the defendants by letter the following:-" Please Whitman v. Winchester Arms Co. **Please pay them [Moore's Sons] $64.40 and no more. send the balance immediately to Lewis Whitman." Thus it appears that, during the interval between the assignment and the attachment of Williams's claim against the defendants, Williams sent to them three written communications, directing them to pay the plaintiff all the indebtedness they were owing him, except the sum of sixtyfour dollars and forty cents. If the defendants had obeyed the instructions by payment of the claim to the plaintiff, no one would question but that they would have been fully protected in so doing. Payment to the plaintiff would have been, in effect, payment to Williams. His claim against the defendants would have been satisfied. But it is said that an order to pay the plaintiff does not inform them that the claim had been assigned to him. The case was susceptible of but two constructions. Either Williams was endeavoring to secrete the money in the hands of the plaintiff to defraud his creditors, which the defendants had no right to assume without evidence, or the plaintiff had a right to the money in payment of a claim that Williams was owing him. The latter was the only sensible construction that could be given the transaction. The defendants could hardly suppose that the plaintiff was merely the agent of Williams to collect the money when Williams was in a situation to collect it himself, and that too when he was endeavoring to get the money paid to the plaintiff, the trouble of effecting which would be as great as it would be to get the money paid to himself. We think the orders given by Williams to the defendants to pay the balance of his claim to the plaintiff, after making a certain deduction, justified the court below in finding that due notice of the assignment in question was given by Williams to the defendants. We see no error in the judgment of the court below upon the demurrer to the defendants' substituted answer. And even if there had been error, it is manifest that it could not have done the defendants any harm, for they amended their Cowles v. Peck. answer and went to trial upon the merits of the case. It is true that if the demurrer had been overruled and the answer had been adjudged sufficient the defendants might have recovered a bill of costs. But it has been frequently held by this court that it will not grant a new trial to enable a party to recover a bill of costs. There is no error in the judgment appealed from. In this opinion the other judges concurred. EDWARD COWLES, EXECUTOR, vs. GEORGE H. PECK. New Haven Co., June T., 1887. PARK, C. J., CARPENnter, Pardee, A guaranty of a note in these words: "I guarantee the within note good till paid," is conditional, and is an undertaking that the note is collectible by the use of ordinary diligence. A guaranty of a note requires a sufficient legal consideration. [Argued June 16th-decided July 15th, 1887.] ACTION on a guaranty of a promissory note; brought to the District Court of Waterbury. The complaint alleged that on August 3d, 1878, one Robert Peck executed and delivered a note to the plaintiff's testator, David M. Cowles, for the payment to his order of $500 on demand, for value received, with interest annually at seven per cent., and that the defendant executed the following guaranty on the back of the note: "I guarantee the within note good till paid; " that the said Robert Peck had since deceased and the defendant as his administrator had paid the plaintiff the sum of $119.96, and refused to pay him the balance upon the guaranty. The defendant demurred to the complaint, on the ground, (1) that it was not alleged that diligence had been used to collect the note from the maker or his estate, and (2) that no consideration for the guaranty was alleged. The court (Bradstreet, J.,) sustained the demurrer and rendered judgment for the 55 251 55 446 55 447 55 448 55 251 71 43 55 251 73 666 Cowles v. Peck. defendant. The plaintiff appealed to the Superior Court in New Haven County, and that court (Andrews, J.,) affirmed the judgment. The plaintiff then appealed to this court. E. F. Cole, for the appellant. 1. Where a note is in terms "for value received" the law presumes a consideration and the burden of proving that there was none rests upon the defendant. And it is for him to set up the want of consideration in his answer, and not for the plaintiff to allege a consideration. Edwards on Bills, 311; Raymond v. Selleck, 10 Conn., 483; Bristol v. Warner, 19 id., 7. The consideration thus established for the note is good for the guaranty upon it. Both were executed at the same time and are to be taken together as one transaction. The mere fact that writings bear the same date is enough to lead the court to treat them as one transaction unless the contrary appears. Bushnell v. Church, 15 Conn., 414. 2. The guaranty is to be construed as an absolute one, requiring no diligence on the part of the holder to collect the note. Breed v. Hillhouse, 7 Conn., 523; City Savings Bank v. Hopson, 53 id., 453. The fact that the note was on demand, and with interest payable annually, shows clearly that it was to be a continuing guaranty and that none of the parties contemplated the taking of legal measures for its collection. W. H. Williams, for the appellee, cited, as to the conditional character of the guaranty-2 Daniel on Neg. Instruments, § 1769, and notes; Edwards on Bills, 235; 2 Parsons on Notes & Bills, 140; Allen v. Rundle, 50 Conn., 9, 20; Hammond v. Chamberlain, 26 Verm., 406. And as to the necessity for a legal consideration of the guaranty-2 Parsons on Notes & Bills, 125; De Colyar on Guarantees, 19, 151; Bliss on Code Pleading, § 268; Colburn v. Tolles, 14 Conn., 341; Practice Act, forms 138, 165. LOOMIS, J. This is a complaint to recover upon a guar |