13 Vt. 93 | Vt. | 1841
The opinion of the court was delivered by
In this case, at the last term, it was holden that the defendant’s guaranty acknowledged the existence of the two notes, the judgment and execution, at the date of the guaranty, and therefore no further evidence was required on that subject. It was further decided that the notes and execution must be produced, on the trial, to rebut the presumption of payment, which otherwise would arise. Pursuant to this decision, it appears, that at the next trial, the notes and execution were produced. It is now insisted that the execution, without the judgment, does not prove it the same execution mentioned in the guaranty. That waS a mere question of identity, a question of fact and not of law. When an execution was produced, agreeing in amount with the general description in the guaranty, between the same parties, of a proper date, and no other being shown ever to have existed, it was quite sufficient for the court, which tried this issue, to find for the plaintiff on that point.
It is true the defendant was entitled to notice (hat the plaintiff had accepted and relied on his guaranty. But whether he ever had that notice was a question of fact. Wo see, from the case, that the defendant, afterwards, often acknowledged his liability and promised to pay. He knew whether he had notice, and the court might well find, from such concessions and promises, that he had received seasonable notice. Such a promise, by an indorser, has often been holden to supercede the necessity of proving notice.
It is further insisted, that the defendant was entitled to notice of the failure of Horatio B. Barney, to make payment. Even if this were generally necessary, it was, in this case, su-perceded by the defendant’s after promise ; but it is not necessary. When one stipulates for a thing to be done, by himself or a third person, he is bound to see it done. He is entitled to notice only of that which the plaintiff was to do.
Judgment affirmed
