The opinion of the Court was by
Tenney J.On Nov. 1, 1841, one Lemont gave to the plaintiff and his partner, who has since deceased, a promissory note of hand on demand and interest, for a balance of accounts arising from the freight of a vessel, of which the payees were part owners, and the maker was master. The settlement was based partly upon a bill of lading of certain merchandise signed by the master, but which he thought embraced some articles, that were not in fact received, or were taken out by the mate, before the vessel sailed. On May 2, 1843, Lemont paid one hundred dollars upon the note and the defendant for the consideration of $14,64, signed the following memorandum on the back of the note: — “I hereby guaranty the payment of balance due on note to J. N. and A. Cooper, dated Nov. 1, 1841, signed C. D. Lemont, within sixty days from the second day of May, 1843, balance due this day, $292,22.” There was no evidence in the case, that Lemont was insolvent or unable to pay the note.
The jury were instructed, that if the guaranty was not obtained by fraud, but fairly and without deception, the plaintiff would be entitled to recover the full amount of the balance due upon the note, to which instructions the defendant filed exceptions.
It is insisted for the defendant, that to entitle the plaintiff to recover of him, it was necessary, that he should have attempted to collect the debt of the maker by suit; or that he should at least make demand of payment of the maker, and on his refusal to pay, give notice thereof to the defendant. It has repeatedly been held in this State and Massachusetts that when the promise of the guarantor is absolute, that the note shall be paid at the time stipulated, which time is after it be*76comes payable by the maker, no demand or notice is required. Cobb v. Little, 2 Greenl. 261; Norton v. Eastman, 4 Greenl. 421; Read v. Cutts, 7 Greenl. 186, and cases cited; Tenney v. Prince, 4 Pick. 385. The case of the Oxford Bank v. Haynes, 8 Pick. 423, cited for the defendant, was where Haynes signed the memorandum, “ I guaranty the within note,” before it was discounted at the bank. It was payable in sixty days, and was suffered to remain for a balance, for a long time after its maturity, between which and the commencement of the action against Haynes, the makers had become insolvent; the Court held that Haynes was not liable, “ because both promissors of the note were solvent, when it became due, and that they had abundant property liable to attachment. But the plaintiffs, with a knowledge of their delinquency, lay by nine months, during which time their property was sacrificed and all hopes of obtaining payment were by that means lost.”
The objection, that the note was without consideration, cannot avail. It was given for that which was due by reason of the maker’s written acknowledgment in the bill of lading. With a knowledge of all the facts, he gave the note, which he afterwards x-ecognized as a valid contract by a payment thereon.
There is nothing in the contract of guaranty, which shows it usurious. If the ground had been taken at the trial, that it was a device of the parties, got up to avoid the statute of usury, the question might have been submitted to the jury upon proper evidence; that was not done and the defendant is concluded upon that point.
Again it is contended, that the plaintiff can recover only the sum paid to the defendaxit and interest thereon. The contract was upon a consideration, which was legal; the understanding of the parties cannot be doubted, and must be' carried into effect. The cases relied upon for the defendant in support of his proposition were actions of indorsees against indorsers of negotiable securites, which were good and available in the hands of the latter, at a greater discount than legal interest, and the damages were confined to the amount paid and interest thereon. The damages in this case, as in those ordinarily *77brought, for non-performance of a contract, must be the sum promised and the interest from the time it was payable.
Whether the plaintiff will be entitled to the note on paying the amount, is a question not raised at the trial, and we do not perceive that its decision is at all connected with the points presented.
.Exceptions overruled.