Beeker v. . Saunders

Daniel, J. A guaranty, is a promise to answer for the payment of some debt or the performance of some duty, in case of the failure of another person, who is himself, in the first instance, liable to such payment or performance, Fell on Guar. 1, Smith on Mercantile Law, 277. The Judge was of opinion, that the laches of the plaintiff had discharged the defendant. And we concur with his Honor. It does not appear in the verdict, that the plaintiff ever demanded the money, due on the notes of Sham-mell’s representatives, for more than fifteen months after he had received them. Nor did he give notice to the defendant, of his inability to get the money out of Sham-mell’s estate, until Feb. 1844, almost three years after he had received the notes upon the guaranty; and when the law demanded of him, to resort to a reasonable degree of diligence, and that too in such time as a prudent and discreet man would in like circumstances use,to collect his own debts. And if he then fail to obtain satisfaction of his principal, he is entitled to resort to his guarantor, on his first giving him notice in a reasonable time, that he is looked to for payment of his guaranty, Towns v. Farrar, 2 Hawks 163, Grice v. Ricks, 3 Dev. Rep. 62. The judgment must he affirmed. Pek Curiam. Judgment affirmed.