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der any circumstances, be treated as the endorsement of a Miller v. Gaston, 2 Hill 192.


In Maryland there have been some decisions which appear not entirely consistent with the doctrine now established in New York. Sullivan v. Violett &c. 6 Gill 181. On the back of a sealed instrument, whereon was written the name first of the obligee and afterwards of another person-the court allowed to be written over the names of these endorsers a joint and several promise to the holder to pay him the amount of the specialty should the obligors make default in payment. Gist &c. v. Drakely, 2 Gill 340. If in Maryland there be an implied contract of an assignor, such as is established in Virginia and Kentucky (ante, p. 271,) this case would seem to hold a doctrine now repudiated in New York-that a written contract of one kind may be turned into a contract of a different kind by parol proof concerning the intention of the parties; that one appearing by the paper to be a several contractor, may, under certain circumstances, be charged as a joint contractor; that a conditional undertaking to pay in case of default by the obligor, and due diligence to recover from him, may, without performance of the latter condition, be turned into an absolute undertaking to pay immediately on default.

No doubt where a person who is not the payee is privy to the original consideration, and at the time the bond or note is given signs on the back an absolute undertaking to pay it at maturity, he may be treated as a joint and several promisor with the party who signs on its face. Hough v. Gray, 19 Wend. 202; Dean v. Hall, 17 Wend. 214. This stands on the principle that two instruments of the same general nature, both executed at the same time and relating to the same subject matter, are to be construed together as forming but one agreement. He who signs and he who endorses having both promised to do the very same thing, to wit: to pay the money at the specified time, they may, without doing any violence to the contract, be regarded as joint makers. And as in point of form each promises for himself, the undertaking may be treated as several as well as joint. Bronson, J. in Miller v. Gaston, 2 Hill 190; Lequear &c. v. Prosser, 1 Id. 256; S. C. 4 Hill 420; Amsbaugh v. Gearheart & Co. 1 Jones 482. In Massachusetts it matters not that the endorsement is in blank. The rule there is, that if before a note is received by the payee another person put on the back of it his name to give credit to it, he is not regarded as endorser or guarantor, but as a surety acting on the same consideration with the principal promisor. Hunt v. Adams, 5 Mass. 358; 6 Id. 519;

Sumner v. Gay, 4 Pick. 311; Samson v. Thornton, 3 Metcalf 275; Richardson v. Lincoln, 5 Id. 203; Union Bank v. Willis, 8 Id. 504. The note is regarded a joint and several note, because each promises to pay and both unite in the same promise. Bryant v. Eastman, 7 Cush. 113.

But in all these cases-the party proceeded against was not a payee. If they can be sustained at all, it is on the ground that the defendant could not on the face of the paper be charged as endorser or assignor; that there was an agreement that he would answer in some other form; and that the plaintiff might write over the name such a contract as would carry into effect the intention of the parties. 2 Hill 84; 3 Id. 235. This ground should not be deemed applicable when the paper on its face imports the implied contract of an assignor on which an action might be brought.

Since Gist v. Drakely, the court of appeals of Maryland has had before it another case, the decision in which conforms to the doctrine now established in New York and is opposed to the Virginia case of Orrick v. Colston, 7 Grat. 195, cited ante, p. 136. Hoffman &c. v. Coombs, 9 Gill 284.

5. Of guaranties in respect to the business, goods, time,

amount or terms.

A guaranty may be for a debt contracted in a joint business or in an individual business. Drummond v. Priestman, 12 Wend. 518. It may be limited to a particular article, Evans v. Whyle, 5 Bingh. 485; 15 Eng. Com. Law Rep. 514; to one debt or payment or liability for one parcel of goods, Melville &c. v. Hayden, 3 Barn. & Ald. 593; 5 Eng. Com. Law Rep. 389; Nicholson v. Paget, 1 Cr. & Mee. 48; 3 Tyrwh. 164; Rogers &c. v. Warner &c. 8 Johns. 119; Aldricks &c. v. Higgins &c. 16 S. & R. 213; Anderson v. Blakely, 2 W. & S. 237; Whitney &c. v. Groot, 24 Wend. 82; Boyce &c. v. Ewart, 1 Rice 126. Or it may be a continuing guaranty applying to debts contracted from time to time by a third person in the way of his business, Hargreave v. Smee, 6 Bingh. 244, 19 Eng. Com. Law Rep. 69; Allen &c. v. Kenning, 9 Bingh. 618, 23 Eng. Com. Law Rep. 401; Mayer v. Isaac, 6 M. & W. 605; Douglass &c. v. Reynolds e. 7 Peters 122; Colburn &c. v. Dawson, 10 Com. Bench (1 J. Scott) 765, 70 Eng. Com. Law Rep. 765; contemplating future loans or advances to him as distinguished from a pre-existing debt, Glyn &c. v. Hertel, 8 Taunt. 208, 4 Eng. Com. Law Rep. 72; Wright v. Johnson, 8 Wend. 512. Though continuing it may mean that the guarantor will be

answerable for not more than a specified amount; that within that amount he will be answerable for supplies at any time until the credit is recalled, Mason v. Pritchard, 2 Camp. 436; 12 East 227; Merle &c. v. Wells, 2 Camp. 413; Bastow v. Bennett, 3 Camp. 220; in which case the amount expressed limits the amount for which the guarantor is to be responsible-not the amount to which the dealing or whole credit given is to extend, Bent &c. v. Hartshorn, 1 Metcalf 24. Or without limiting the amount, the guarantor may limit his responsibility to goods supplied within a specified time. Hitchcock &c. v. Humfrey &c. 5 Man. & Grang. 560, 44 Eng. Com. Law Rep. 296; Louisville Man. Co. v. Welch, 10 How. 473. Or the guaranty may be limited as to time and amount, Simpson &c. v. Manley &c. 2 Cr. & Jerv. 11; and prescribe certain terms, Hunt v. Smith, 17 Wend. 179; Dobbin &c. v. Bradley, Id. 422; Birckhead v. Brown, 5 Hill 640; Walrath v. Thompson, 6 Id. 540; Smith v. Dunn, Id. 545. Like other commercial contracts it is construed with reference to the usages of trade. S. C. S. C. When there is a limitation as to the time within which the purchases are to be made, but not as to the time of the credit to be given to the purchaser, and credit appears to have been contemplated, there may be such as is given on the sales of such goods in the ordinary course of trade. Louisville Man. Co. v. Welch, 10

How. 473.

6. Whether there must be notice of acceptance of guaranty to make it absolute.

The undertaking of the guarantor may be absolute to pay for supplies furnished or advances made the third person to a definite amount; without creating or implying the necessity of notice of its acceptance or notice of such supplies or advances. Duval &c. v. Trask, 12 Mass. 154; Caton v. Shaw &c. 2 Harris & Gill 22; Whitney v. Groot, 24 Wend. 84. Ór his letter may be only an overture or proposition leading to a guaranty; in which case there must be notice to the writer of its being accepted as a guaranty or some subsequent consent on his part to convert it into a conclusive guaranty. McIver &c. v. Richardson, 1 M. & S. 557.

In the United States, some cases lay it down as a general principle, that when the party offering to guaranty is uncertain whether his offer will be accepted, and uninformed before hand as to the amount of debt to be created, so that he cannot know whether he is ultimately to be liable or not, nor to what extent, it is necessary, in order to charge him, that he should

have reasonable notice. Babcock v. Bryant, 12 Pick. 135; Allen v. Pike, 3 Cush. 238.

Certainly where a letter of credit is of a general character, addressed to no particular individual, but "to all whom it may concern," and without limitation in amount or time of continuance, such a letter being in its form rather a proposition than a contract, the law requires in such a case that due notice be given to the party that the proposed guaranty has been acted upon and made the basis of credit to the person for whose accommodation it was drawn. Mussey v. Rayner, 22 Pick. 229.

And where the letter is addressed to a particular person or firm for a future credit, to be given to the party in whose favour the guaranty is drawn, the supreme court of the United States has decided that notice is necessary to be given to the guarantor that the guaranty is accepted or acted on, and credit given on the faith of it. Edmondson v. Drake &c. 5 Peters 624; Douglass &c. v. Reynolds &c. 7 Id. 125; Lee v. Dick, 10 Id. 495, 6; Adams &c. v. Jones, 12 Id. 207; Reynolds &c. v. Douglass &c. Id. 497; Wildes &c. v. Savage, 1 Story's Rep. 32. This doctrine has been recognized and acted on in Ohio. Taylor &c. v. Wetmore &c. 10 Ohio 490. "It may," Mr. Justice Story thinks, "be most material, not only as to the guarantor's responsibility but as to future rights and proceedings. It may regulate, in a great measure, his course of conduct and his exercise of vigilance in regard to the party in whose service the guaranty is given. Especially is it important in the case of a continuing guaranty, since it may guide his judgment in recalling or suspending it." 7 Peters 125.

In New York, Cowen, J. has expressed the opinion (24 Wend. 50) that the American cases, which hold that under a contract, guaranteeing a debt yet to be made, the guarantor is not liable to a suit without notice that the guaranty has been accepted and acted upon, have no foundation in English jurisprudence. It is admitted in New York, that a declaration made to another of a willingness to become a guarantor, if required, would not render the declarant liable as a guarantor without compliance with the express condition which means giving notice, Stafford v. Low, 16 Johns. 67; that in such cases there must be notice or a subsequent consent to become a guaranty, Beekman v. Hall, 17 Id. 134; but it is considered that these cases-cases of express condition, like Berks v. Tippett, 1 Saund. 32, and other cases in Saund. 33, note, and Com. Dig. Plead. C. 69, 70,-are exceptions to the general rule, that where one guaranties the act of another, his lia

bility is commensurate with that of his principal, and he is no more entitled to notice of the default than the latter, Somersall v. Barneby, Cro. Jac. 287; Brookbank v. Taylor, Id. 685; Atkinson v. Rolfe, 1 Leon. 105; Pitman v. Biddlecombe, 4 Mod. 230; Smith v. Goff, 11 Id. 48, 2 Salk. 457; Harris v. Ferrand, Hardr. 36, 42; 1 Chit. Pl. 286. "The guarantor," Cowen, J. observes, "by enquiry of his principal, with whom he is presumed to be on intimate terms, may inform himself perfectly whether the guaranty were accepted, the conditions fulfilled and payment made." Douglass v. Howland, 24 Wend. 52.

If the defendant said to the plaintiffs in substance, "If you deliver the goods, I will guaranty the payment," the courts of New York will not add a condition that he shall have notice. Smith &c. v. Dann, 6 Hill 543. But if in his proposal he has provided for notice to himself, then it must be given. Fellows &c. v. Prentiss, 3 Denio 512.

Whether or no a guarantor would otherwise be entitled to notice of the acceptance of his guaranty, he may, by the terms of his letter of credit, waive all right to such notice, and make his accountability depend on other conditions. If it be on condition that there be default in paying the price at the time stipulated in the contract, and notice to him of such default, the latter notice is sufficient; and the guarantor is not discharged by the purchaser's having given a bond for the price. Wadsworth &c. v. Allen &c. 8 Grat. 174.

7. Within what time notice must be given of the acceptance of guaranty; and of the amount for which guarantor is held responsible.

In a case in Massachusetts, where there was a mere offer to guaranty a debt or debts which might or might not be afterwards created, it was argued that although the defendant as guarantor was entitled to reasonable notice that the plaintiff had accepted his guaranty and had trusted the third person on the faith of it, yet that notice, within thirty days after the debt became payable, was a reasonable notice. This was three years after the offer of guaranty, and after the plaintiff had first given credit on the faith of it. The supreme court of Massachusetts adjudged that this was not reasonable notice. Allen v. Pike, 3 Cush. 238.

Suppose there be notice that the guaranty is accepted, but no notice of the advance to the third person, and no notice of the non-payment by him until the amount is demanded of the guarantor, the question may then be, how far the failure to

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