Oaks v. Weller

| Vt. | Jan 15, 1841

The opinion of the court was delivered by

Collamer, J.

The courts in this state, following the American decisions on the subject, have holden that a guar-an tor shall have notice of the acceptance of his guaranty. gut tjiey have also holden that this notice need not be a direct, actual and personal notice, given only by the plaintiff or his agent. Whether notice was had, is a question of fact, to be found by the jury, from the testimony and circumstances in the case. This was so decided in the case of Lorillard v. Williams, in this county, and in Train v. Jones, in Windsor county. The reasonableness of this principle is quite obvious, and commends itself to the moral sense. When a proposition is made by a man for a thing to be done for himself, he must know, when done, that it is done on his proposition. But when he proposes his responsibility for a thing to be done for another, he may not know that it is done, or, even if he does, he will not know whether it was done on his proposition, or on the sole credit of the third person, or on some other security. The responsibilities and duties of a guarantor imply certain correlative rights and privileges, which, without notice of his condition, he can never exercise. If he is to stand as surety, he must have the right to keep watch of his principal and his circumstances ; hold or demand proper security, from time to time, and require of his principal reasonable punctuality, and even, in chancery, to secure indemnity by enforcing payment by the principal. These important rights cannot be available while he remains ignorant of his proposition of guaranty having been accepted. All these principles apply with equal force to all persons, though not strictly and technically guarantors; who come in aid of another.

It is, however, much insisted, in this case, that it is dangerous to hold such a doctrine; for this, that, to treat the notice as a condition precedent, would enable the surety, after the acceptance and performance, to revoke before notice. But we recognize no such principle. If the law attaches a stipulation or a condition to a contract, it is to be treated the same as if expressed in the contract. And if two or more things are to be done in succession, the law gives a reasonable time for their successive performance. Hence, where the law interposes a notice between the matter to be done by the plaintiff, and the ultimate liability of the defendant, it allows the plaintiff, after entering on his performance,' a reasonable time to give the notice ; and, for that time, the power of revocation is suspended. Still, all must be performed before a right of action accrues. This is so in' all contracts. If a man were to propose to another, if he would build a house and paint it, he would, on demand, pay him therefor, and the other, in reasonable time, entered upon building the house, it would be then too late to revoke; still, no recovery could be had, unless, in reasonable time, the house was built and painted, and demand made. So if a man write, “ if you ivill do such a service for another, I will pay you that, in legal effect, is, “do that for him, and let me know it, in reasonable time, and I will be ultimately liable.” If the thing to be done be seasonably entered upon, the offer cannot be revoked ; but, before action accrues, the whole must be performed ; that is, the thing must be done, and the notice must be given, in the time stipulated, and if none be stipulated, then in a reasonable time. Therefore, holding a notice necessary does not permit a revocation after the performance is entered upon.

In this case, the defendant came in aid of Taylor, and proposed, if the plaintiff would assume the debt of Taylor, and procure the discharge of his bail, (Prentiss,) he would execute his note for fifty pounds. The defendant resided in Upper Canada, and the matter to be performed by the plaintiff was in Vermont. The defendant was clearly entitled to notice from the plaintiff, that he had performed, on his part, and relied on the defendant. It could not be expected the defendant was to come and see the creditor, to ascertain if the plaintiff performed ; nor could he so ascertain, whether it was done on his proposition. Though when the plaintiff had assumed Taylor’s debt, the defendant could not have revoked his offer, yet he could not be responsible, unless he, in reasonable time, received notice that he was relied on. This he needed, and this he was entitled to have, for the reasons already stated. But we find that no notice was attempted to be given the defendant, until two years after the transaction, and then very loose and unsatisfactory. This was not sufficient.

But it is hardly necessary to hold, in this case, any more than to say that, by the very terms of this contract, notice was necessary. The defendant’s line, alone, is too imperfect to show any contract. Taken with Taylor’s letter, they, together, make the contract. Taylor proposes, if the plaintiff will assume his debt, &c., he will, when written to that the business is done, give bis and Weller’s notes. Weller but adds his assurance of his note. Now, there is no proof that Taylor has ever been written to, nor in any way informed that the plaintiff has assumed his debt; and, clearly, the defendant, as surety for Taylor, cannot be holden when Taylor, his principal, is not.

Judgment reversed.