36 Vt. 617 | Vt. | 1864
The question is not, whether James Morse could become a guarantor, in the commercial sense, for his own debt, nor whether, if Aaron Morse had individually executed such a paper as the present, he would have been a guarantor of James, in the commercial sense, and thereupon been entitled to notice that the gnaranty had been acted upon.
But it is whether, by force of the instrument in this case, the defendants became bound to perform according to its stipulation, upon its being received by the plaintiff for property or money advanced to James.
The defendants, by this paper, assume a joint obligation, to become operative upon a specified event, as constituting the consideration. If such consideration be valid to give the instrument effect as to either, it gives it effect as to both ; and it is not allowable fpr one of the obligors to claim exemption on the score of some
There is no question but that the obligation of- the paper became effectual as to James Morse, when the plaintiff took it and advanced property to him on the strength of it. We have not been apprized of any principle or case which distinguishes between joint obligors or promissors.in respect to their respective liability to the obligee or promissee, .where .the undertaking is for the same thing and upon the same consideration.
We see no occasion to discuss the subject of notice to a guarantor, as involved in many of the cases, — for we do not think it is involved in this, beyond the notice operated by the fact that James Morse passed off the paper for property advanced, just as the paper was upon its face intended to be used ; and the effect of this act was the same as to both the joint makers of the instrument. If that act be treated in the nature of notice of the acceptance of the paper, then, by force of the joint relation of the defendants, it operated upon both to every legal intent of fixing the liability of both.
The judgment is affirmed.