22 Me. 175 | Me. | 1842
The opinion of the Court was drawn up by
— This action is founded on a claim for advances, made by the plaintiffs, to one Robert S. Nickels, under a guaranty in writing, signed by the defendant and one Alexander Nickels, in substance as follows, viz. In considera
Two general principles may be considered as fully established in cases of this kind. The first is, that the guarantor must be apprised of the acceptance of the proposed guaranty. The other, that he must, within a reasonable time, be notified of the amount, which may have been advanced, and of demand of payment, without effect, of the principal debtor. The former of these is essential to constitute the contract, between the parties; for it is only upon the ground of a contract, between the parties, that any liability can arise ; and a contract cannot be said to exist till each party is apprised of the assent of the other to it.
With regard to the other principle, that there must be reasonable notice of the amount advanced, and of non-payment by the principal debtor, although it be a general rule, in such
Although the facts may be ascertained, the result to which they may tend, by way of proving reasonable notice, is unascertained. Here the difficulty is twofold. First, the train of circumstances and facts, in reference to the question, often, and indeed usually, are not only numerous and complicated, but dissimilar to those, which have occurred in any previous case; so much so as to preclude, in a good measure, a resort to any precedent to aid in forming a decisive opinion; and, secondly, the impression, as to what state of facts should be deemed to amount to reasonable notice, will not be uniform in different minds. Hence, notwithstanding, that what is to be deemed reasonable notice, is a question of law; yet in most cases it must be almost as unsettled, and as^far removed from any thing, that can be recognized as a known-rule of action, as if no decision had ever before been made on the subject.
There are many cases occurring in the administration of justice, where certain general propositions can be laid down; but which, when they come to be applied, must be met by a variety of incidents, unforeseen, and never before contemplated; and in reference to which no general rule has or could- have been prescribed beforehand. The Court, in every such case, must be expected to exercise its best discretion and judgment in determining what the law must be deemed to be as applicable thereto. This must necessarily give rise to some uncertainty as to what will be the decision in any given case; but this is the inevitable result of human frailty, and the imperfection of all things depending upon human foresight and sagacity.
The defence, then, must rest upon the ground of which the defendant did complain. He was entitled to reasonable notice of the amount claimed, and of the demand upon the principal debtor, and of non-payment by him. The debt was incurred in Sept. 1835. Although the note given for it was on demand, it was for goods sold in the mercantile line ; and a credit, from the known usage in such cases, may be presumed to have been-in the contemplation of the parties. The first payment made on the note was in the February following, something over four months from the date of the note. Whether the contemplated credit had then expired or not; does not appear. This was about twenty months before the defendant was notified of the existence of the debt, and of the non-payment of it. In this time the principal debtor had closed his business, where he was, when the credit was given, and had removed to another town, and there formed a connexion in business with another person, which had proved unfortunate, and left him insolvent. During the same'time, repeated attempts had been, unsuccessfully, made by the plaintiffs to induce the principal debtor to make payment. Not until after all these occurrences was there any notice of the existence of this demand forwarded to the defendant.
The cases referred to by the counsel for the defendant, tend very strongly to show, that such notice cannot be regarded as having been seasonably given. And the cases of Douglas v. Raynolds, 7 Peters, 113; and Lee v. Dick, 10 ib. 482, are