1 A surety to a bond who signs and delivers it to the principal, upon his promise to procure certain other sureties, is bound, although the latter delivers it to the obligee without any such names, unless the bond indicate on its face that the others were to sign also. South Berwick v. Huntress, 53 Me. 89; Webb v. Baird, 27 Ind. 368 (1866). So, where a surety signs and delivers to his principal a negotiable note, under a condition that it shall not be delivered to the payee until some other person shall sign the same as co-surety, and there is nothing on the note indicating that any other co-surety is expected, and no fact is brought to the knowledge of the payee before he accepts the same, calculated to put him on his guard, or which should induce inquiry, the surety will be bound. Merriam v. Rockwood, 47 X. H. 81 (1866).
2 Antrobus v. Davidson, 3 Mer. 569; Elworthy v. Maunder, 2 M. & P. 482; Pearse v. Morriee, 2 Ad. & El. 84; Musket v. Rogers, 5 Bing. N. C. 729; Hunt v. Smith, 17 Wend. 179.
3 Alcock v. Blowfield, Noy, 95; Russell v. Buck, 11 Vt. 166.
4 Payne v. Ives, 3 Dowl. & R. 664.
1 If a person has guarantied the payment of a note within a reasonable time, what is unreasonable delay in bringing suit against the principal in such a case must depend on circumstances indicating the intention of the parties. Clark v. Merriam, 25 Conn. 576 (1857).
2 Ward v. Fryer, 19 Wend. 494; Sylvester v. Downer, 18 Vt. 32. A guaranty of a promissory note expressly "waiving all right to demand and notice" cannot be contradicted by oral evidence of a contemporaneous agreement to collect the note from the principal debtor, and of laches in pursuing him. Worcester Co. Inst, for Savings v. Davis, 13 Gray, 531 (1859). Under a written guaranty, made in October, 1851, to be responsible for goods furnished to a third person to a certain amount, goods were furnished in August, September, and October, 1852, and no notice was given to the guarantor of the amount due from the principal, or of any default of payment, until the service of the writ in an action brought on the guaranty, in January, 1856. It was held, that the right to recover was barred by laches. Whiting v. Stacy, 15 Gray, 270 (1860).
3 Wheeler v. Lewis, 11 Vt. 265; Loveland v. Shepard, 2 Hill, 139; Beach v. Bates, 12 Vt. 68.
4 Gamage v. Hutchins, 23 Me. 565; Williams v. Collins, 2 Murph. 47; Globe Bank v. Small. 25 Me. 366; Clark v. Remington, 11 Met. 361maker and to give notice, and then he is only discharged to the extent of the damage sustained.1 And if the principal given by two sureties, each for half of the amount of the debt, and also, by a warrant of attorney of the principal debtor, upon which the creditor had entered up judgment, and taken the goods of the debtor in execution, and afterwards withdrew the execution, it was held that the sureties were pro tanto discharged.1 So if, by the contract between the principal parties to a contract for the performance of certain work, it is the duty of the plaintiff to insure the property at the expense and for the benefit of the contractor, a surety of such contractor is discharged if the plaintiff neglect to procure such insurance, and the surety is thereby injured,2 by losing his right in the insurance. If the liability of the surety depend upon any prior act of the creditor, as to make a demand upon the surety, his omission to make it is a discharge of the surety. If no time be mentioned within which a demand must be made, it must be made within reasonable time.3
5 Foote v. Brown, 2 McLean, 369; Hank v. Crittenden, 2 McLean, 557; Lewis v. Brewster, 2 McLean, 21.
1 Vinal v. Richardson, 13 Allen, 521 (1866); Rhett v. Poe, 2 How. 484. Mr. Justice Daniel in this case says: "It is contended that a guaranty is an insurance of the punctual payment of the paper guaranteed; is a condition and a material consideration on which this paper is received; and, therefore, that a failure in punctual payment at maturity is a forfeiture of such insurance on condition, rendering the obligation of the guarantor absolute from the period of the failure. Whether this proposition can or cannot be maintained to the extent here stated, the authorities concur in making a distinction between actions upon a bill or note, and actions against a party who has guaranteed such bill or note by a separate contract. In the former instances, notice in order to charge the drawer or indorser is, with very few established exceptions, uniformly required; in the latter, the obligation to give notice is much more relaxed, and its omission does not imply injury as a matter of course. In "Warrington v. Furbor, 8 East, 212, where the guaranty was not by indorsement of the paper sued upon, and the action was upon the contract, Lord Ellenborough said, that the same strictness of proof is not necessary to charge the guarantors as would have been necessary to support an action on the bill itself, where, by the law-merchant, a demand and a refusal by the acceptor ought to be proved, to charge any other party on the bill, and this notwithstanding his bankruptcy. But this is not necessary to charge guarantors who insure as it were the solvency of the principal; and if he becomes bankrupt and notoriously insolvent, it is the same thing as if he were dead; and it is nugatory to go through the ceremony of making a demand upon him.' Le Blanc, Justice, says, in the same case, 'there is no need of the same proof to charge a guarantor as there is a party whose name is on a bill of exchange; for it is sufficient as against the former to show that the holder could not have obtained the money by making demand of it.' The same doctrine may be found in Philips v. Astling et al., 2 Taunt. 206. So, too, Lord Eldon, in the case of Wright v. Simpson, 6 Ves. 731, expresses himself in terms which show his clear understanding of the position of a collateral guaranty or surety. His language is, ' As to the case of principal and surety, in general cases I never understood that, as between the obligee and the surety, there was an obligation to active diligence against the principal; but the surety is a guarantor, and it is his business to see whether the principal pays, and not that of the creditor.' The case of Gibbs v. Cannon, 9 Serg. & R. 198, was an action against a guarantor who was not a party on the note, upon his separate contract. The Supreme Court of Pennsylvania decided in this case, that, provided the drawer and indorser of the note were solvent at the maturity of the note, notice of non-payment should be given to the guarantor, and that the latter, under such circumstances, may avail himself of the want of notice of non-payment; but it places the burden of be insolvent at the time the debt becomes due, demand and notice are not necessary.1