The cases turn, as remarked by the Lord Chief Justice in that of Martin v. "Wright, on the particular terms of each guarantee, and it is therefore impossible to lay down any less general rule of construction than that which we have endeavoured to give.
Promises to answer for tortious defaults are within the operation of the statute, as well as guarantees of credit. Kirkham v. Marter, 2 B. & Ald. 613, is a leading authority on this point. A. having killed B.'s horse, C. guarantees to B., the owner, to answer for the damage: this was held to be within the statute. Lord C. J. Abbott distinguishes this case from that of Reed v. Nash, 1 Wils 305, but which Serjeant Williams thinks it overrules: 1 Saund. 211, c. n. 1.
Shares in a joint stock company are mere choses in action; but railway shares, it is submitted, inasmuch as they give an interest in land, would fall under the operation of the 4th section.
There is an important class of cases upon the subject of notice to the guarantor, the doctrine of which may be said to be almost peculiarly American. It is a rule of the common law, that where a party stipulates to do a certain thing in a certain specific event, which may become known to him, or with which he may make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to do a thing which lies in the peculiar knowledge of the opposite party, then notice ought to be given him : Vyse v. Wakefield, 6 M. & W. 452. But in the case of Russell v. Clark, 7 Cranch, 69, Edmondston v. Drake, 5 Pet. 624, this principle was, in its application to mercantile guarantees, thought rather an obligation of commercial than of the common law, and in the subsequent case of Douglass v. Reynolds, 7 lb. 113, which is a leading case upon the subject, this view was directly sanctioned, and it was held that notice of the acceptance of a guarantee, and of the giving credit under it, must be given to the guarantor immediately or within reasonable time (unless, indeed, in the case of a continuing guarantee, when it would not be necessary to give notice of each successive transaction as it arose, but after the transactions were closed, notice of the whole amount for which the guarantor was held responsible should be given to him within a reasonable time); and further, that demand of performance must be made upon the principal, and immediate notice of his default given to the guarantor, and that a failure so to do would discharge the latter, unless it be clearly made out that under the circumstances of the case no injury had resulted to him from the neglect. This rule has been frequently affirmed by the Supreme Court of the United States, and adopted in most of the States, and the student will find the authorities collected and their distinctions classified in the first volume of American Leading Cases. p. 50, note to Douglass v. Reynolds. Some of the authorities where the subject is most elaborately discussed, are Craft v. Isham, 13 Conn. 28; Wildes v. Savage, 1 Sto. 22; Howe v. Nickels, 22 Me. 175. In many of the cases notice would have been necessary under the common law rule referred to, but the authorities have based them upon the principles of commercial law.
In New York, however, dissent from this doctrine of notice has been expressed in Douglass v. Howland, 24 Wend. 35; Whitney v. Groot, lb. 82; Smith v. Dann, 6 Hill, 543; Curtis v. Brown, 2 Barb. 51; Union Bank v. Coster, 3 N. Y. 203. In the first of these cases the defendant's agreement was such given at the trial of statements by Schuler at the time of execution that he intended to sign on his own behalf (viz. that one B. should faithfully perform an agreement with the plaintiff to account and pay over all such sums as should be found due from him to the latter), as would not have required notice under any circumstance, as the events to which it referred, though prospective, were not dependent on the option of the plaintiff; but the court held that as a general rule, when nothing on the face of the guarantee required notice, the court could not exact one as a condition precedent to a recovery. In the opinion of the annotator referred to, the weight of reasoning lies between these two classes of cases, and points to the following rule: that in all cases in which the contract of a guarantor does not determine precisely the nature and the amount of liability for which he is willing to make himself responsible, and leaves either or both these points to the choice of the person who seeks to enforce the guarantee, the latter is bound to give notice of the mode in which he has exercised the election thus accorded him, and cannot complain that there has been a default on the part of the defendant before giving him precise information as to what is necessary to be done in order to fulfil his engagements; but that when the defendant's contract, instead of leaving open the cause of action upon which he is willing to make himself liable, points out some mode of performance, in consideration of which he is willing to be bound, either directly or on behalf of another person, an action will lie without notice as soon as the consideration has been performed.
Notwithstanding a few decisions or dicta to the contrary, 2 M'Lean 21, lb. 369, lb. 557, the weight of authority has unquestionably settled, that however necessary notice may be to a recovery, it need not be averred in the declaration : Gibbs v. Cannon, 9 S. & R. 198; Rhett v. Poe, 2 How. 485; Salisbury v. Hale, 12 Pick. 424; Dole v. Young, 24 lb. 250; Wildes v. Savage, 1 Sto. 22; inasmuch as the want of notice will only operate as a defence to the guarantor where it has resulted in some actual injury to him, and is different in its operation in this respect from the notice required to charge an endorser of a negotiable instrument, in which case the rule is inflexible and open to no inquiry whether notice could have availed him or not, as in either case the endorser is absolutely discharged.