Allen v. Rightmere

Spencer, Ch. J. delivered the opinion of the Court. Proof of demand and notice of non-payment were not necessary. The defendant’s engagement is, in effect, that Toan should pay the note, or that he would pay it. It is the duty of the debtor to seek the creditor, and pay his debt on the very day it becomes due. As regards the maker of the note, and to render him liable, no demand is necessary. A demand of payment is necessary only to fix an endorser or a surety, whose undertaking is conditional. An endorser does not absolutely engage to pay. It is a conditionál undertaking to pay, if the maker of the note does not, upon being required to do so, when the note falls due, and upon the further condition, that the endorser shall be notified of such default. The defendant insists that he stands in the situation of an endorser merely; but such is not the fact. The undertaking here is not conditional; it is absolute, that the ¡maker shall pay the note when due, or that the defendant ¡will himself pay it. In Tillman v. Wheeler, (17 Johns. Rep. 326.) and the cases there referred to, it was taken for granted, that upon a guaranty such as this, no demand or notice would have been necessary. (12 Mass. Rep. 14.) Judgment for the plaintiff.