FROM MERRIMACK CIRCUIT COURT. In order to constitute a valid guaranty, there must be a sufficient consideration, a delivery by the guarantor, an acceptance by the person to whom it is given, a subsequent delivery of goods or other property under and in accordance with its terms, and, if the guaranty is collateral, request of payment within a reasonable time of the person for whose benefit it is given, and notice to the guarantor of non-payment. This, however, is not necessary in all cases.
Where the undertaking to pay is absolute, notice to the guarantor is unnecessary. His liability is fixed without demand and notice. Beebe v. Dudley, 26 N.H. 249, and authorities there cited. Where the undertaking is collateral, and not absolute, notice must be give within a reasonable time, or it must appear that the situation and circumstances of the parties are such that no injury has resulted to the guarantor from the want of notice. The object of notice is to let the guarantor know that he is relied on for payment, and it should be give to him whenever it would be of any advantage to him to have it, that he may, if possible, secure himself. Where the party for whom the undertaking is made becomes insolvent, so that no advantage can arise to the guarantor by notice being given, notice is unnecessary.
It must appear that the neglect to give notice to the guarantor has produced some loss or prejudice, otherwise notice and demand before the action is brought is sufficient.
Lord ELLENBOROUGH, in Warrington v. Furbor, 8 East 242, p. 245, says that guarantors "insure, as it were, the solvency of their principals, and, therefore, if the latter become bankrupt and notoriously insolvent, it is the same thing as if they were dead, and it is nugatory to go through the ceremony of making a demand upon them."
In the light of these principles, so well established that they may be regarded as elementary, I am unable to see any reason why the plaintiff are not entitled to recover. *Page 36
The guaranty was dated September 8, 1873. The consideration is stated in it. It is clear and explicit in its terms. It was delivered to and accepted by the plaintiffs. It is, in its terms, expressly to be a continuing guaranty. Under it the plaintiffs delivered goods to the defendant's sons, the persons for whose benefit it was given, up to and including October 24, 1873 to the amount of $434.16. This suit was brought March 5, 1874 More than four months elapsed between the date of the delivery of the goods and the bringing of the suit, and the defendant's sons had then failed. There was then no necessity for notice, and we are not therefore called upon to decide whether the demand made on the day of the date of the writ, and the notice to the defendant on that day and before the writ was served, was sufficient or not. Indeed, it seems to me quite clear that this contract of guaranty was absolute and not collateral, and upon the authority of Beebe v. Dudley, supra, demand and notice were unnecessary.
Entertaining these views, I am of the opinion that the exceptions must be overruled.