*1 MARCH v. PUTNEY. Putney. March Guaranty —Consideration—Notice.
To constitute a valid guaranty, there be a sufficient a an guarantor, to whom acceptance by goods
accordancewith and, if it is notice of non-payment.
Notice is not when the is absolute.
Where whose benefit the in- becomes guaranty solvent, can arise to the notice is un- guarantor, necessary. Circuit Court. 5,1874. a contract of guaranty. Writ dated Assumpsit, The cause was sent to a who made the following report: “ The action is as recover sold his goods sons, two Fred C. and Charles IT. The Putney. follows: consideration of dollar me paid one March Bros. Co., Boston, Pierce & Massachusetts, hereby guar- I do antee to them the of purchase, for all four from the date months prompt payment, within which the Bros. Co. said March Pierce may from time to time sell to Fred and Charles my 0. Putney who Putney, are about to under Concord, II., store at open the firm of tinuing Bros., understood this shall be con- Putney in full guaranty, remain force until countermanded writing lay me.
Hebron, N. H., Grafton county, September A. S. PUTNEY. “ After the sold de- of said delivery fendant’s said sons : merchan- as follows 1873. September dise, $154.71; 29, merchandise, $169.45; September $24.75; merchandise, October 17, merchandise, $19.75; merchandise, merchandise, $65.50 ; Also, $434.16. — A $86.75; this suit is goods. recover —and of four sold. credit months was when the On March M. 5, 1874, attorney Wm. for the plain- Esq., tiffs, this bill presented to Fred C. and demanded Putney ‘ Putney I can’t it now.’ firm of The saying, Bros, had made, then failed. On the same the writ suit was same, officer, goods, sent to the who served the with the bill and with instructions to demand
MARCH PUTNEY. officer pre- said writ. case liis refusal serve pay, *2 7, at Hebron 1874, sented the bill to the March (having the was in and of the writ his demanded hands), it to had it, nothing pay he could not and saying they that with. I find for and award these facts the Upon above, sold as @434.16, recover of for the the defendant 7, due, and interest the bill of November which was not then except from the and writ, $26.81, of and costs of taxed date the reference costs of court to be taxed the court.” by On motion of was for the plaintiffs the ordered plaintiffs, judgment this to which the defendant report, excepted. Jr., Sargent Olíase,
Josiah B. and for the Benton, plaintiffs.
Mugridge, the defendant. * Stanley, J., C. In to a valid guaranty, C. order constitute there an ac- must bo a sufficient the the to whom it is ceptance goods given, terms, and, if accordance with its collateral, time the is within a reasonable of the for whose it is and notice to the guarantor benefit This, however, is not all cases. non-payment. Where the to is notice to the absolute, guarantor undertaking is Beebe v. His fixed and notice. unnecessary. liability is without demand and authorities there cited. Where is absolute, the within a reasonable and not notice be undertaking and time, or it must situation cir- the appear that no to cumstances the are such has resulted the injury from the want of is to let the notice. The notice guarantor object know that he is on for it should be guarantor relied and him it, to it be of to him to have any advantage whenever would if for whom may, secure himself. Where the the possible, can insolvent, made becomes so that arise to the notice notice guarantor being given, It must to has guarantor that the notice the give and some loss or otherwise notice demand before produced prejudice, the action is is sufficient. Furbor, Lord 8 East says Warrington p. Ellenborough, “ insure, were, as it the of their guarantors solvency principals, therefore, insolvent, if notoriously the latter become and it bankrupt dead, is the go same if and thing nugatory ceremony making the a demand them.” upon that they the of these established be light principles, well am regarded the elementary, why unable see reason plain- tiffs are not entitled to recover.
* C., J., C. C. Foster, did not sit. RAT v. AUSTIN. The guaranty was dated consideration is stated in it. It is and in its clear terms. It was delivered to explicit is, It accepted by be plaintiffs. expressly to continuing defendant’s it guaranty. Under the plaintiffs delivered whose benefit was to and persons given, up including 24,1873, to the amount of This suit was $>434.16. 1874. More than four months between elapsed date of the delivery suit, of the and the bringing defendant’s sons had then failed. was There then no necessity notice, we are therefore called decide whether the de- mand made on the day writ, the date of the and the notice to the defendant on that and before writ was served, was sufficient or not. Indeed, it seems me clear that this contract of quite was absolute and not collateral, and of Beebe *3 demand and notice were supra, these I Entertaining am of the views, opinion exceptions must be overruled. J.
Cushing, C. agree ought to be overruled. exceptions Ladd, J., concurred the result. overruled.
Receptions Ray v. Austin. Reference—Practice. The referee provision law contains no or
refusal of referee, before the certified to the being shall be rendered him. court,judgment nonsuitor de- against fault; to render such to be inferred from judgment in said act that after the jirovision has been made the cause report be tried “in the same manner and jury with limita- tions as the ease of the of an auditor.” report Circuit Court. action This was sent by the court to a who made at report term, follows : April named, before first The;,'referee, duly sworn, certifies that he said action at hearing the officeof appointed Sargent on at 10 county, January o’clock in the fore- Concord,¡in noon, notified the thereof notices sending mailed 16,1874, the Concord post-office, post-office,