Strong support may be found in the language of the written instrument in question, of the claim of the defendant and of the ruling of the trial court thereon, that the undertaking of the defendant was a contract of guaranty for the term of two years only, upon which he could be held liable only upon an impairment of the value of the collaterals during that period and a sale of the securities either during that period or within a reasonable time thereafter. We are, however, not required to determine whether such is the correct construction of the agreement, inasmuch as it seems clear to us that the limit of the guaranty was either the expiration of the two-year period, after which the plaintiff had an absolute right to demand payment of the note irrespective of the value of the securities, or was the time thereafter when it in fact demanded such payment; and that whichever of said periods was the limit of the contract of guaranty, the plaintiff, in order to hold the defendant upon his agreement, was required to sell the collateral within a reasonable time after demanding payment of the note; and that upon *Page 144 the fact found the plaintiff's case must fail, whichever of said constructions is adopted.

A construction of the agreement which would permit the plaintiff, after interest had ceased to be paid upon the note, after payment of the note had been demanded, and even after the death of the maker of the note, to sell the collaterals at such time as its officers might choose, without regard to whether the sale was made within a reasonable time after such events, would be an unreasonable one, and contrary to the language of the contract showing that it was the understanding of the parties that the bank desired protection, at the farthest, only until such reasonable time after demanding payment of the note as would enable it to sell the securities.

Assuming, then, that the two-year period was not the limit of the contract of guaranty, the plaintiff, in order to hold the defendant for any deficiency of the avails of the sale of the securities to pay the note, caused by the depreciated value of the securities at the time payment of the note was demanded, was required to sell them, giving the defendant an opportunity to buy them at the sale, within a reasonable time after the demand of payment; such demand, it is found, was frequently made after the expiration of the two-year period following December 9th, 1891 (within which no demand was to be made), and apparently in 1894; and all such demands must have been made prior to October 30th, 1895, the date of Mr. Greene's death.

The court has found that the sale of December 15th, 1897, was not made within a reasonable time after the letter of October 13th, 1894, and we see no reason for questioning the correctness of the conclusion that a delay in selling the securities, for more than two years after payment of the note was demanded, was unreasonable, unless it can fairly be said to appear from the record that such delay was induced, as the plaintiff claims, by the acts of the defendant.

The acts relied on as showing that the delay was reasonable are the correspondence and conversations between the *Page 145 defendant and the plaintiff's treasurer. Regarding them, the court has found that such indulgence as the defendant may have before granted, as to the time of selling the securities, was terminated by the defendant's letter of October 13th, 1894, closing with the statement that he could see nothing to do but sell the collateral; and has further found, in effect, that the defendant did not waive his right to an earlier sale of the securities. The trial court's interpretation of the correspondence and acts of the parties is warranted by the facts, and is fully sustained by the letter of November 15th, 1897, from the plaintiff's treasurer to the defendant's attorney, which contains no suggestion that the sale was so delayed at the instance of the defendant. On the contrary, the letter says, in substance, that such delay was for the purpose of obtaining a better price, after the plaintiff had been advised to take such action as seemed to it necessary to protect itself.

The value of the securities did not diminish during the two-year period. Whether they had depreciated in value at the time of the demand of payment is not found. However that fact may have been, the defendant cannot be held liable, since the sale was not made within a reasonable time after the demand.

There is no error.

In this opinion the other judges concurred.