| Ark. | Nov 17, 1900
On the 4th of September, 1890, at Mount Vernon, Ohio, W. H. Mitchell, executed to John S. Braddock' three promissory notes, each for the sum of one hundred dollars, payable to the order of Braddock at his office in Mt. Vernon, Ohio, and due, respectively, in two, three and four years after date. Subsequently, and before the maturity of the notes, Braddock sold and assigned them to M. Wertheimer, and indorsed upon each of them a guaranty as follows: “I assign the within notes to M. Wertheimer, and guaranty collection and payment thereof when due. [Signed] J. S. Braddock.” Mitchell did not pay the notes. On the 4th of April, 1898, Wertheimer instituted an action on the guaranties on these notes before T. W. Wilson, a justice of the peace of Pulaski county, and recovered judgment. Braddock appealed to the circuit court, where judgment was rendered against him; and he appealed to this court.
The appellee, to sustain his action, read as evidence, on the trial, the notes and guaranties sued on; and also read as evidence, over the objection of appellant, Clay v. Edgerton, 19 Ohio St. Rep. 551, Neil v. Board, 31 Ohio St. Rep. 15, and Kautzman v. Weirick, 26 Ohio St. Rep. 330, to prove that, according to the laws of Ohio, no demand by appellee upon Mitchell, the maker of the notes, for payment thereof, and notice to Braddock of the non-payment, were necessary to render appellant liable for the payment of the notes.
“The appellant testified that, shortly after he got the notes from Mitchell, he went to appellee and negotiated the notes to him, and wrote the following indorsement on the notes: ‘I assign the within note to M. Wertheimer, and guaranty the collection thereof when due.’ Appellee then asked that he be permitted to exhibit said indorsement to his lawyer for advice, which appellant agreed to, and returned with said notes, saying that his lawyer advised that the words ‘and payment’ should be inserted in said indorsement after the word ‘collection’ and before the word ‘thereof,’ and thereupon appellant interlined the ■said word as requested, and appellee then accepted the notes.”
The reading of the opinions of the supreme court of Ohio as evidence was not prejudicial to appellant; for, in the absence of evidence to the contrary, the presumption is that the common law is in force in Ohio.
The only qnestion in the case which demands serious consideration is, was appellant, according to common law, discharged from liability upon his guaranties by any failure of .appellee fro demand payment of the’ notes by Mitchell, and to give notice to Braddock of the non-payment? According to the decisions of this court, he was not. The guaranty of the appellant was absolute. Nothing was necessary to be done to fix the liability of Mitchell, the maker of the notes. The rule ■is that demand and notice are not necessary to hold the guarantor of a debt liable where nothing remains to be done on the part of the guarantee to perfect his rights as against the principal — the maker of the notes in this case. In such cases his undertaking is not treated or considered as a collateral liability, but as a primary and positive agreement, by which he binds himself to see that the principal debt is paid. Lane v. Levillian, 4 Ark. 76" date_filed="1842-01-15" court="Ark." case_name="Lane v. Levillian">4 Ark. 76; Killian v. Ashley, 24 Ark. 517; Friend v. Smith Gin Co. 59 Ark. 86" date_filed="1894-04-28" court="Ark." case_name="Friend v. Smith Gin Co.">59 Ark. 86; Read v. Cutts, 7 Greenleaf, 186, marginal page.
Judgment affirmed.