Paige v. Parker

74 Mass. 211 | Mass. | 1857

Metcalf, J.

The first suggestion made by the defendant in support of these exceptions is, that the contract was not binding on him, because it was not binding on Blodgett & Company when it was made; they not having then promised to sell upon the faith of the guaranty. But it is a common learning, that there are valid contracts which are not binding on both parties at the time when made. In Morton v. Burn, 7 Ad. & El. 23, Patteson, J. said: “ Suppose I say, if you will furnish goods to a third person, I will guaranty the payment; there you are not bound to furnish them ; yet, if you do furnish them in pursuance of the contract, you may sue me on my guaranty.” In Kennaway v. Treleavan, 5 M. & W. 501, Parke, B. made a similar statement of this familiar law.

The next point taken by the defendant is, that Blodgett & Company did not give him notice that they had accepted his guaranty. On this point, a distinction, which is sometimes overlooked, is to be taken between a guaranty and an offer of a guaranty. In the ease of an offer of a guaranty, as in the case of any other offer or proposal, an acceptance thereof, seasonably made known to the party offering, is necessary to the completion of the contract. But express notice of the acceptance of an absolute guaranty is not always, if ever, necessary for the purpose of binding the guarantor. In the State of New York, the courts hold that no notice of acceptance is necessary, when a guaranty is absolute. Union Bank v. Coster, 3 Comst. 212. See also Farmers & Mechanics’ Bank v. Kercheval, 2 Mich. 511. However this may be, we are of opinion that the defendant, in this case, had notice that his guaranty was accepted. An absolute guaranty was written by Blodgett & Company, in their store, and for their benefit; the defendant signed it there, and left it with them as a completed contract; and they retained it. This was an acceptance by them, of .which he must be held to have notice. As was said by Storrs, J., in New Haven County Bank v. Mitchell, 15 Conn. 219, a formal notice of acceptance, in addition to this, would have been an act of supererogation. We are satisfied with the reasons given for the decision in that case, which is not distinguishable from this. The distinction is there well shown between a guaranty like this and the numerous cases that have been decided on letters of credit, where express notice of acceptance has been held necessary in order to charge the party signing them.

The defendant objects further, that he is not bound by his guaranty, because he did not receive notice, from time to time, of the sales made to R. A. & E. Stocker. This objection was not pressed, and it has no force. The decisions are uniform, that after acceptance of a continuing guaranty like this, of payment for goods to be sold, the seller ordinarily need not give the guarantor notice of the sales made, until a reasonable time after default made by the buyer. There is nothing in this case which takes it out of the ordinary rule of law. Douglas v. Reynolds, 7 Pet. 126. Wildes v. Savage, 1 Story R. 32. Craft v. Isham, 13 Conn. 36, 37. Clark v. Remington, 11 Met. 365. Howe v. Nickels, 22 Maine, 179.

The last point made by the defendant is, that he had not, before action brought, notice in due form and in due season, of the amount claimed of him under his guaranty. We think he had. The notice given to him on the 8th of December 1854 contained a full statement of the account between Blodgett & Company and R. A. & E. Stocker, and a special demand on him for payment. This brings the case within the decision in Curtis v. Hubbard, 9 Met. 322. The notice was also seasonable ; it not appearing that the defendant suffered any loss by reason of not receiving it' earlier. Such is the established doctrine in this commonwealth. Salisbury v. Hale, 12 Pick. 424. Bickford v. Gibbs, 8 Cush. 156. Exceptions overruled.