2 Bell v. Bruen, 1 How. 169; Lawrence v. McCalmont, 2 How. 426. So if a guaranty is drawn with reference to a mortgage as an already existing writing to be thereafter executed, the two are to be construed together for the purpose of ascertaining the extent of the guarantor's liability. Adams v. Way, 32 Conn. 160 (1864). If a person by an indorsement in blank guaranty a note payable in one day from date, the plaintiff may prove by parol that the defendant, by such guaranty, promised that the note should be collectible for a reasonable time. Clark v. Merriam, 25 Conn. 576 (1857), citing and approving Beckwith v. An-gell, 6 Conn. 315; Perkins v. Catlin, 11 Conn. 213; Castle v. Candee, 16 Conn. 223.
3 Barclay v. Lucas, 1 T. R. 291. This case is cited and approved in Miller v. Stewart (Story, J.), 9 Wheat. 680.
4 Broom v. Batchelor, 1 H. & N. 255; 38 Eng. Law & Eq. 572.
5 Mason v. Pritchard, 12 East, 227; Merle v. Wells, 2 Camp. 413; Sansom v. Bell, 2 Camp. 39. See, also, Martin v. Wright, 6 Q. B. 917; Clark v. Burdett, 2 Hall, 197; Grant v. Ridsdale, 2 Har. & J. 186. As to a continuing guaranty, see, also, Heffield v. Meadows, Law R. 4 C. P. 595 (1869); Laurie v. Scholefield, Id. 622 (1869); Coles v. Pack, Law R. 5 C. P. 65 (1869). Where premises were leased for one year and at the option of the lessee for another year, and the defendant by a covenant next following the stipulation for another year agreed "that if the said let D. have what goods he calls for, and I will see that the same are settled for," is a continuing guaranty.1 So, also, a guaranty in the following terms was held to be a continuing guaranty: "In consideration of your agreeing to supply goods to K. at two months' credit, I agree to guarantee his present or any future debts to the amount of .£60. Should he fail to pay at the expiration of the above credit, we hereby bind ourselves to pay you within three days from the date of receiving notice."2 But this guaranty was held to be restricted to debts for goods sold, and to debts upon the credit of two months.3 So, in a guaranty "for goods supplied" to another, parol evidence is admissible that both parties meant goods to be supplied.4 A guaranty in the following words, "I., J. M., will be answerable for £50 sterling that W. Y., butcher, may buy of Mr. J. H.," is a continuing guaranty to the extent of £50, as it appeared from the circumstances under which the guaranty was given that the parties contemplated a continuing supply of stock to W. Y. in his trade of a butcher.5 A guaranty in the following words, "In consideration of the Union Bank advancing to R. & Co. any sums of money they may require during the next eighteen months, not exceeding in the whole .£1000 we hereby guaranty the payment of any such sum as may be owing to the bank at the expiration of the said period of eighteen months," is a continuing guaranty.6 So where D. F. was indebted to the plaintiff in a large amount, the defendant gave the plaintiff a guaranty in the following words: "Now, I do hereby, in consideration of your forbearing to take lessee shall neglect or refuse to pay the rent aforesaid, in manner aforesaid, I will pay the same within ten days thereafter," it was held that the defendant's guaranty applied to the second year's rent as well as the first. Deblois v. Earle, 7 R. I. 26 (1861). 1 Hotchkiss v Barnes, 34 Conn. 27 (1867).
2 Martin v. Wright, 6 Q. B. 917.
4 Hoad v. Grace, 7 H. & N. 494. And see Colbourn v. Dawson, 10 C. B. 765; Goldshede v. Swan, 1 Exch. 154; Haigh v. Brooks, 10 Ad. & El. 309; Bainbridge v. Wade, 16 Q. B. 89.
5 Heffield v. Meadows, Law R. 4 C. P. 595 (1869).
6 Laurie v. Scholefield, Law R. 4 C. P. 622 (1869).
immediate steps for the recovery of said sum, guaranty the payment of, and agree to become responsible for, any sum of money for the time being due from the said D. F. to you, whether in addition to the said sum or no;" and it was held that this was a guaranty for future supplies, unlimited both as to time and amount.1 So the following language constitutes a continuing guaranty: "In consideration of the credit given by the H. G. C. Co. to my son, I hereby hold myself responsible as a guarantor to them for the sum of .£100; and in default of his payment of any accounts due, I bind myself by this note to pay to the H. G. C. Co. whatever may be owing, to an amount not exceeding the sum of £100." 2 A guaranty, not under seal, of the "sum of five hundred dollars, to be drawn out in merchandise by W. from time to time as he may want; this guaranty to remain good until further order, or until April 1, 1857," is a continuing guaranty, and renders the guarantor liable to the extent of $500 for goods sold within that time, even after other goods to that amount have been sold to W. and paid for by him since the making of the guaranty; and although no notice thereof is given to the guarantor until the expiration of that time.3 So, also, a writing in these words, "I agree to be responsible for the price of goods purchased of you, either by note or account, at any time hereafter, to the amount of $100," was held to constitute a continuing guaranty to the extent of one hundred dollars, for goods sold at any time before the recall of the credit.4 A guaranty as follows, "Gentlemen, - Please credit A. to the extent of £30 monthly, and, in default of his not paying, I will be accountable for the above amount," binds the guarantor, not merely to £30 in the aggregate, but to any amount, not exceeding £30 monthly.5 The presumption, however, in all doubtful cases of guaranty is, that it is not a continuing guaranty, covering an indefinite number of advances, for an indefinite space of time, but is intended to
1 Coles v. Pack, Law R. 5 C. P. 65 (1869).
2 Wood v. Priestner, Law R. 2 Exch. 66 and 282 (1867). 3 Hatch v. Hobbs, 12 Gray, 447 (1859).
4 Bent v. Hartshorn, 1 Met. 24.
5 Tennant v. Orr, 15 Irish Com. Law, 397 (1864.) be restricted to the particular transaction in respect of which it was created.1 Thus, where a guaranty was in this form: "The object of the present letter is to request you, if convenient, to furnish Messrs. H. with any sum they may want, as far as $50,000. We shall hold ourselves answerable to you for the amount;" it was held not to be a continuing guaranty.2 So, also, the following guaranties were held not to be continuing: "I hereby agree to guarantee to you the payment of such an amount of goods at a credit of one year, interest after six months, not exceeding $500, as you may credit to J. R.;" 3 and "For any sum that my son G. may become indebted to you, not exceeding $200, I will hold myself accountable." 4 And a guaranty in these words, "We consider Mr. J. V. E. good for all he may want of you, and we will indemnify the same," was held not to be a continuing guaranty, but to be restricted to the amount of such goods as were obtained at the first presentation.5 So, also, the law will not presume a contract of guaranty unless the obligation be plainly and explicitly expressed, or unless it be evident that the person charged actually intended to assume the liability of surety.6 But whether the words used in a particular case will or will not create a continuing guaranty is often a matter of no small nicety.7 A surety, however, who has assumed a liability in respect of all sums advanced to his principal will not be liable for moneys illegally advanced.8 Where a guaranty is appended to a contract, and makes reference thereto to indicate the liability assumed, the contract becomes a part of the guaranty. Thus, where, by an instrument annexed to a lease, A. "covenanted and agreed to become surety for the faithful performance of said Garner's (the lessee) covenants as expressed in the above said lease," it was held that both instruments were to be taken together to ascertain the contract of the parties.1 So an agreement in writing to "guaranty the payment of a note, signed by A. and payable to B. and by him indorsed, and also indorsed by C. & D.," and further described by its amount, date, and time, which agreement is made after the party is shown a note purporting to correspond with the description, and actually indorsed by C. & D., but on which the names of A. & B. are forged, though not known to the guarantor or to the holder not to be genuine, binds the guarantor to pay that note, if there is no other note in circulation at the time of the guaranty, answering to the description.2 So a guaranty of a note described therein by the name of its maker, its date, amount, and day of payment, and which is shown to the guarantor and a commission paid to him at the time of his signing the guaranty, binds him to pay the note upon non-payment thereof by the maker after the usual demand and notice, although the note is made payable to the maker's own order, and never indorsed by him, and the want of such indorsement is not known to either party until after the day of payment named therein.3 But the description of a promissory note, in a sealed guaranty, as annexed thereto, and the omission to mention in the guaranty that the note is attested, and bears indorsements of payments of interest, will not exempt the guarantor from the payment of a note corresponding in all other particulars with the description in the guaranty.4 And generally one who guarantees in writing the payment of a bond assigned by him thereby estops himself from denying, in an action on the guaranty, that the makers of the bond were competent to contract in the manner they did.6