55 Iowa 543 | Iowa | 1881
We are not agreed as to the proper construction of the third proposition above stated. Some of us incline to think the court meant to be understood as saying that the plaintiff was bound to notify the defendants of Boal ’s default within a reasonable time after the transactions guaranteed had been closed. If this be the proper construction, the instruction we think is correct, under the rule adopted in Second Nat. Bank of Rockford v. Gaylord, 34 Iowa, 246; Rodabaugh v. Pitkin, 46 Iowa, 544. Others of us think the court meant that-the defendants were entitled to notice, within a reasonable time after all transactions were closed, of the extent of their liability. If this be the proper construction of the instruction we do not understand the court has determined the question thus presented, and as we are advised there is apparently a conflict in the authorities in relation thereto, We, however, think the weight of authority is in accord with the rule of the instruction. 2 Parsons on Contracts, 5 ed., 13-14.
In cases where the guaranty is a continuing one, and the parties must have understood the liability thereunder would be increased and diminished from time to time and the guaranty uncertain as to when it would cease to be binding ou the guarantor, and when the party indemnified has the power at pleasure to annul and put an end to the contract guaranteed without the knowledge of the guarantor, we think the better rule is that the guarantor should have notice within a reasonable time afjer the- transactions under the contract guaranteed are closed of the amount of his liability thereunder, to the end he may, with the use of reasonable diligence, secure himself from loss. What constitutes a reasonable time was properly defined in an instruction given the jury. ' ■
There was no evidence tending to show a notice to the de
Affirmed.