The opinion of the court was delivered by
Bennett, J.The language of the defendants promise is, “1 “ guarantee the said note is good, and the payment of the same.”
There is no ground for the claim, that to charge this defendant, the note must have been presented to the makers at maturity for payment, and due notice given of its non-payment. The law merchant is not applied to a guaranty like the one before us, and if this had been a conditional guaranty, all that the law would have required, would be the use of reasonable diligence.
The court did charge the jury that notice of the acceptance of the guaranty must have been given within a reasonable time. It was a conceded point, at the trial, that the bank had accepted the guaranty, and, upon the faith of it, had discounted the note for the benefit of the signers; and the jury under the charge of the court must have found that the defendant had notice, within a reasonable time, of the acceptance of the guaranty. It has been settled in this state that this notice need not be proved by direct testimony ; but it may be inferred, and that it might have come from the plaintiffs, or from the makers of the note, or from some other source. See Train & Co. v. Jones, 11 Vt. 444. There is no ground of complaint to the charge of the court, then, thus far.
We do not discover that the judge, in his charge, authorized the jury to take anything into consideration, which had not some tendency to show that the defendant might have had notice of the acceptance of the guaranty within a reasonable time. Some of the considerations alluded to by the judge in his charge would not have a very decided bearing upon the question before the jury; but if they had any tendency to prove the fact of notice, they were to be weighed by the jury, however slight they might be.
The case of Oaks v. Weller, 13 Vt., 106, seems in principle to sustain the direction given the jury in all its particulars.
Notwithstanding the case of Russell v. Buck, 11 Vt. 166, we are all well agreed that this is an absolute guaranty.
Though the guaranty that the note was good, standing alone might have been but a conditional promise, yet, when it is added, “ and the payment of the same,” it evidently becomes an absolute promise.
*544It is a promise that the makers will pay the note according to its tenor. No notice, then, that the makers had not paid the note was necessary.
The defendant, however, was not liable to pay the costs in the suit against the makers. That suit was not necessary to charge the defendant, and the costs should not have been included in the damages.
The judgment, then, must be reversed with costs to the defendant, and judgment for the plaintiffs to recover the amount of the note and interest. No costs to be taxed for the plaintiff in this court.