1 Mayhew v. Crickett, 2 Swanst. 185. A creditor who holds the personal contract of his debtor with a surety, and has or receives subsequently property from the principal as security for his debt, must appropriate it fairly for the payment of the debt, or he will lose his claim against the surety to the amount of the property. Springer v. Tootha-ker, 43 Me. 381 (1857). The promisor in a note secured by mortgage of real estate sold the equity of redemption, and after the note became due the purchaser guaranteed its payment under seal. The mortgagee subsequently took possession of the land for condition broken; and in an action on the guaranty it was held that the guarantor might be called upon at once to pay the same, and the mortgagee was not bound to first apply the mortgage security. Crocker v. Gilbert, 9 Cush. 131 (1851).
2 Watts v. Shuttleworth, 5 H. & N. 235. And see Newton v. Chorl-ton, 10 Hare, 651; Pearl v. Deacon, 24 Beav. 186.
3 Payne v. Ives, 3 Dowl. & Ry. 664; Oxley v. Young, 2 H. Bl. 613; Theobald on Principal and Surety, 139.
1 Douglass v. Reynolds, 7 Pet. 113; Edmondston v. Drake, 5 Pet. 624; Lee v. Dick, 10 Pet. 482; Reynolds v. Douglass, 12 Pet. 497; Wildes v. Savage, 1 Story, 32; Oaks v. Weller, 13 Vt. 105; Howe v. Nickels, 22 Me. 175; Lawson v. Townes, 2 Ala. 373; Mussey v. Rayner, 22 Pick. 223; Williams v. Staton, 5 Smedes & Marsh. 347; Kay v. Allen, 9 Barr, 320. Under an agreement to indorse any paper which another person may give for purchases made to a certain amount each month, no liability arises until the purchases have been made and the notes given or requested to be given, or unless notice of the purchases has been given to the contracting party within a reasonable time; and a delay of nearly four months is unreasonable. Schlessinger v. Dickinson, 5 Allen, 47 (1862). A. made the following contract with a corporation: "For value received I promise to pay to the P. Ins. Co. $325, and the same shall be paid as it shall be required within thirty days after demand, or upon notification of thirty days in any newspaper printed in Hartford." This contract was guaranteed by C. as follows: "In consideration that the P. Ins. Co. accept the within note for the purpose therein mentioned, I warrant the payment of the same according to the tenor thereof until the expiration of forty-five days after notice is given by me in writing that my responsibility shall no longer continue." Held, that after giving notice to the principal in the manner specified, it was not necessary to give notice to the guarantor within a reasonable time, but that a notice at any time before the institution of an action against him was sufficient if the guarantor does not show that he has been injured by the delay. Protection Ins. Co. v. Davis, 5 Allen, 54 (1862).
2 Wildes v. Savage, 1 Story, 32; Douglass v. Reynolds, 7 Pet. 113; Cremer v. Higginson, 1 Mason, 323; Howe v. Nickels, 22 Me. 175; Mussey v. Rayner, 22 Pick. 223. A guaranty delivered by the guarantor to the guarantee, of the payment of any sales to be made to a third person, binds the guarantor, without proof of a promise of the guarantee to make such sales, or of formal notice of the acceptance of it, or of notice to the guarantor of each sale as it is made. Paige v. Parker, 8 Gray, 211 (1857).
1 Ibid.; Whiton v. Mears, 11 Met. 563.
2 Goring v. Edmonds, 6 Bing. 99; Trent Navigation Co. v. Harley, 10 East, 34; Theobald on Principal and Surety, 137; Orme v. Young, Holt, N. P. 84; Wildes v. Savage, 1 Story, 35; Eyre v. Everett, 2 Russ. 381; Reynolds v. Douglass, 12 Pet. 497; Oxford Bank v. Haynes, 8 Pick. 423; Pitman on Principal and Surety, 197; Peel v. Tatlock, 1 Bos. & Pul. 419; Lilley v. Hewitt, 11 Price, 494; Lawrence v. McCalmont, 2 How. 426; Howe v. Nickels, 22 Me. 175; Train v. Jones, 11 Vt. 444. See Courtis v. Dennis, 7 Met. 510; Clark v. Remington, 11 Met. 361; Lang-dale v. Parry, 2 Dowl. & R. 337; London Ass. Co. v. Buckle, 4 J. B. Moore, 153.
3 New Haven County Bank v. Mitchell, 15 Conn. 206; Wildes v. Savage, 1 Story, 22.
4 Smith v. Dann, 6 Hill, 543.
1 McDougal v. Calef, 34 N. H. 534 (1857). The obligation of a guarantor is that which the fair import of the language employed in the guaranty imposes on him. If his engagement is absolute, he is not entitled to insist upon any condition. Simons v. Steele, 36 X. H. 73 (1858).
2 Whitney v. Groot, 24 Wend. 82.
3 In Smith v. Dann, 6 Hill, 543, a broader doctrine is laid down as obtaining in New York, but it is not supported by the other authorities out of the State. In that case the guaranty was in these terms: "We consider J. E. V. good for all he may want of you, and we will indemnify the same;" and it was held that notice of acceptance was unnecessary. Mr. Justice Bronson says, "The defendant invited the plaintiffs to sell goods to Steel & Wall, on his promise to guarantee the payment of the debt. The plaintiffs assented, and delivered the goods. The proposition of one party was accepted by the other; and according to our notions of the law this made a complete contract. Nothing further was necessary to its consummation. If the defendant wanted notice, and did not get it from the persons whom he thought worthy of credit, it was his business to inquire and ascertain what had been done. There is nothing in the defendant's undertaking which looks like a condition, or even a request that the plaintiffs should give him notice if they acted upon the guaranty; and there is no principle upon which we can hold that notice was an essential element of the contract. Whitney v. Groot, 24 Wend. 82; Douglass v. Howland, Ib. 35. The case of Beekman v. Hale, 17 Johns. 134, and Stafford v. Low, 16 lb. 67, went upon the ground that there was nothing more than an overture or proposition leading to a guaranty. But here the undertaking was absolute. The defendant said to the plaintiffs, in substance, 'If you deliver the goods, I will guarantee the payment.' We cannot add a condition that the defendant shall have notice. He should have provided for that himself in the proposal made to the plaintiffs. I know there are cases which require notice; but we think they are not based upon the common law, and for that reason they have not been followed in this State." from his original liability, pro tanto. Thus, if the debtor be solvent when the debt becomes due, and subsequently, before notice of his default be given to the guarantor, he become insolvent, the surety is discharged, because of the entire loss of a claim which he might have enforced, if he had received due notice.1