§ 1122. The general rule applicable to the liability of guarantors or sureties is that their liability is only coextensive with that of the principal upon the particular transaction in regard to which such a liability is assumed. The natural limit of the obligation of a surety is to be found in the obligation of the principal; and when that is extinguished, the surety is in general liberated.1 And if the liability of the principal depends on a condition, a surety can set up in his defence a non-compliance with the condition.2 It is, however, perfectly competent for the guarantor to assume a liability exceeding that of his principal, if he choose so to do by the terms of his contract. Thus, a person may expressly guarantee to the holder of a note the payment thereof by an indorser, whether proper notice be given or not, and in such case the guarantor would be liable, when the principal would not. But his liability will be considered as coextensive with that of his principal, unless it be expressly limited.3 So, also, a guarantor is not bound beyond the fair import of the actual terms of his engagement.4 Thus, if a person becomes surety for faults which occur after an omission to re-elect him at a regular meeting for that purpose, and after such further time as may be sufficient for the election and qualification of his successor, although he continues to act as treasurer, and is re-elected at the next regular meeting thereafter.1 If a person gives a bond with sureties for the due performance of his duties as collector of the poor-rates and of the sewer rates, and an act is passed increasing his duties as collector of sewer rates and under which he was also elected collector of main drainage rates, this does not discharge the surety, as the bond is divisible.2 Where one enters into a bond as surety for the performance by another of two things which are separate and distinct, a subsequent alteration of the principal's contract as to one of them, without the surety's consent, does not release the surety from his contract of suretyship as to the other.3 The guarantor will be bound to the full extent of the terms of his agreement, and they will be construed against him, and in favor of the guarantee, as far as their reasonable import will allow.4 If a guarantor, by the use of ambiguous language in his guaranty, renders it susceptible of two or more equally reasonable interpretations, that is to be adopted which makes most strongly against him; but what is the most reasonable interpretation of a guaranty is to be deduced - considering its subject, the relative condition of the parties, and their probable intent - from the language employed in it.1 But a contract of guaranty will never be construed so as to embrace any thing which is not included within the fair scope of the terms of his agreement.2 Indeed, the manifest
1 Cage v. Cassidy, 23 How. 109 (1859).
2 Doughty v. Savage, 28 Conn. 146 (1859). 3 Curling v. Chalklen, 3 M. & S. 502.
4 Miller v. Stewart, 9 Wheat. 680; United States v. Kirkpatrick, 9 Wheat. 720; St. Saviour's, Southwark v. Bostock, 2 B. & P. N. R. 175. A written guaranty of "the payments of all powder consigned "to a certain person for sale, will not cover a sale to the consignee of the powder remaining unsold upon closing the account between the consignor and himself; and cannot be controlled by evidence of a custom among commission merchants, known to the guarantor, to purchase goods remaining unsold under such circumstances, and to treat such a transaction as a sale to a third person. Carkin v. Savory, 14 Gray, 528 (1860). If a person guaranties the owners of a vessel a " sum of £900 gross freight home," for another in an office of a limited duration, or which the particular incumbent is to hold for a certain period only, he will not be liable beyond such time, even though the limitation do not appear in the condition.1 Thus, where A. was appointed deputy-postmaster for six months, and the bond was conditioned for the faithful execution of the office by A. "during all the time that he should continue postmaster," and he was reappointed after the six months, and made default thereafter, it was held that the guarantor was not liable.2 So the sureties on the bond of the treasurer of a and the owners can procure a cargo estimated at only about two-thirds of that amount, and the vessel is lost on its way home, the owners are entitled to recover the difference between the estimated and guarantied freights, if not the whole freight of £900. Carr v. The Wallachian Petroleum Co., Law R. 1 C. P. 636 (1866); s. c. Law R. 2 C. P. 468 (1867). Where there was a contract for furnishing a steam-engine, the following guaranty was made: "For value received I hereby guaranty the performance of the within contract, on the part of H. & L., and in case of non-performance thereof to refund to H. & M. all sums of money they may pay or advance thereon, with interest from the time the same is paid," it is not in the alternative, but consists of two terms: one, that the principals shall perform their engagement by the delivery of such machinery as the contract includes; the other, that if there is a non-performance, whether excusable or not, the money advanced on the contract shall be secured to the plaintiffs, to the extent to which the principals are liable. Benjamin v. Hillard, 23 How. 149 (1859).
1 Arlington v. Merricke, 2 Saund. 403; Liverpool Waterworks v. Atkinson, 6 East, 507; Leadley v. Evans, 2 Bing. 32; s. c. 9 Moore, 102; Peppin v. Cooper, 2 B. & Ald. 431; Dedham Bank v. Chickering, 3 Pick. 341; Union Bank v. Ridgely, 1 Har. & Gill, 432; Kennebec Bank v. Turner, 2 Greenl. 42; Worcester Bank v. Reed, 9 Mass. 268, Rand's note; United States v. Kirkpatrick, 9 Wheat. 720. S. was appointed treasurer of a corporation in 1851, and was annually reappointed until 1858. Upon his first appointment he gave bond with sureties. He committed no default until 1856. The treasurer was to continue in office until the next annual meeting and until another should be appointed in his stead. Held, that the office was an annual one, and that the obligation of the bond did not extend beyond the year for which the treasurer was first appointed. Welch v. Seymour, 28 Conn. 387 (1859).