The principal questions in this case are whether the guaranty sued upon was one which continued "until further notice" from the defendant to the plaintiff, and whether the defendant gave that notice before the indebtedness sued for was incurred. The first question must be answered in the affirmative. The contract provides in express terms that it shall be a continuing guaranty in favor of the plaintiff, to the amount of $500, until further notice from the defendant to the plaintiff; and there is nothing in the contract, or in the facts found, to detract from the force of this express provision. The guaranty is not limited to the time covered by any contract of agency between the plaintiff and Olmsted, nor does it allude or refer to any such contract. It covers all sales contemplated in it, made by the plaintiff to Olmsted after its delivery and before notice, however and whenever made. In short, the guaranty continued during the pleasure of the defendant, and it covered all sales made by the plaintiff to Olmsted during that period of time; but the defendant's liability under it could never exceed $500. In this sense the guaranty was a continuing one and the trial court, upon the facts found, did not err in so holding.
The defendant claimed in the trial court, and now claims, that the notice he gave to Hoblett in February, 1899, to "cancel the bond," was notice to the plaintiff that the guaranty contract was at an end; and the next question is, assuming this was such notice to Hoblett, whether it was also such notice to the plaintiff. It was if Hoblett was the agent of the plaintiff for that purpose, otherwise not. Whether Hoblett was the agent of the plaintiff for such purpose was a question to be determined by the trial court from the evidence, and it has found that he was not. There is nothing upon the record, including the evidence certified, to show that the court erred in coming to that conclusion, and it must stand as found. It follows that up to the time when Olmsted made default in his payments to the plaintiff in 1899, the defendant had given no notice to the plaintiff that the guaranty was at an end, and that the guaranty covered the indebtedness sought to be recovered in this suit. *Page 493
The evidence excluded, if offered, as it appears to have been, to prove a guaranty for the year 1898 alone, was rightly excluded, on the ground that such evidence could not prevail over the words of the written instrument.
There is no error.
In this opinion the other judges concurred.