Whiting v. Stacy

Hoar, J.

It will not be necessary to consider whether the guaranty declared on in this action was a continuing guaranty, or whether, under the circumstances, the defendant was entitled to notice of the acceptance of the guaranty by the plaintiff. The doctrine has been repeatedly announced by this court, and it must now be regarded as the settled law of Massachusetts, that, as a general rule, in order to maintain an action against a guarantor of a future contingent event, notice that the guaranty has become operative must be given in a reasonable time to the guarantor. Babcock v. Bryant, 12 Pick. 133. Bickford v. Gibbs, 8 Cush. 156. Courtis v. Dennis, 7 Met. 519. Clark v. Remington, 11 Met. 366.

In this case, the guaranty was given on the 6th of October 1851; the goods were furnished in August, September and October 1852; the action was commenced on the 24th of January 1856; and no notice was ever given to the defendant of the amount due from the principal, or that any credit had been given him upon the defendant’s guaranty, except the service of the writ. We can have no doubt that the defendant did not *271receive the notice to which his contract entitled him; that a delay of three years, without any reason shown for it, was an unreasonable delay; and that the plaintiff, by his own loches, has barred his right of action. Exceptions overruled.