Sylvester v. Downer

The opinion of the court was delivered by Royce, J. The defendant excepted, in the court below, as well [35] to the admission of the witness Whitcomb, as to the decision overruling his motion in arrest of judgment. But as the former point has not been urged in this court, we shall treat it as having been waived. It appears, that the plaintiff took a general verdict upon several counts in his’ declaration, including what was originally the second count. That is the only one, which will be considered in reference to the motion in arrest. If that count was fatally defective after verdict, the motion in arrest should have prevailed, though other counts, not liable to objection, were also covered by the verdict. Hazelton v. Weave, 8 Vt. 480; Harding v. Cragie, Ib. 501; Walker v. Sargeant, 11 Vt. 327; Needham, v. McAuley, 13 Ib. 68. I shall consider but a single question, arising upon this count, and that is, whether it should have alleged notice to the defendant, before the commencement of this action, that proper efforts had been made to collect the note of Strong, and that they had proved unavailing. It is urged, that this was unnecessary, either on the ground that the defendant’s undertaking, as here stated, amounted to an absolute guaranty; or because the allegations made imply such an utter insolvency of Strong, at the time, that the plaintiff was not bound to take any measures against him. A guaranty, that the maker of a note shall pay it when due, or that it shall be paid according to its tenor, or at any given period, is uniformly holden to be an absolute undertaking, that payment shall be made according to such stipulation, either by the direct debtor, or else by the guarantor in his stead. In such a case no active means are required on the part of the creditor to obtain payment, nor is any notice of non-payment required to be given to the guarantor, in order to perfect the cause of action against him. Smith v. Ide, 3 Vt. 290; Knapp v. Parker, 6 Vt. 642; Williams v. Granger, 4 Day 444; Breed v. Hillhouse, 7 Conn. 523; Campbell v. Butter, 14 Johns. 349; Allen v. Rrightmere, 20 Johns. 365; Upham v. Prince, 12 Mass. 14; Peck v. Barney, 13 Vt. 96. But a guaranty, that a demand against a third person is, or shall be, good and collectable, was never construed a’s being unconditional and absolute. The very terms imply the condition, that the person taking such a guaranty shall use all reasonable diligence to collect the demand of the debtor. Foster v. Barney, 3 Vt. 61; [36] Russell v. Buck, 11 Vt. 166; Wheeler v. Lewis, Ib. 265. To which may be added the Connecticut cases on the blank indorsement of notes not negotiable, which is there holden to be in the nature of a guaranty, that the note is good and collectable. In this instance the defendant’s undertaking belongs to the class of conditional guaranties, since he only promised, that, “ when said note should become due, it should be good and collectable.” It follows, that the plaintiff was under obligation to make proper exertions to collect the note of Strong, unless the facts were such, as to furnish a competent excuse for omitting them. Now we have no occasion to decide whether any, or what degree of insolvency, on the part of the debtor in these cases, will excuse the neglect of all attempts to collect of him. For if it be conceded, that an excuse can exist on that ground, extending even to the neglect of notice to the guarantor, preparatory to a suit against him, it is clear, that the insolvency of Strong is not sufficiently averred for such a purpose upon this declaration. It is merely alleged, that, “ when said note became due and payable, said note was not good and collectable, and the plaintiff was unable to collect said note; ” and again, that he “ hath been wholly unable to collect said note.” This does not import, that all endeavours to collect it would have been manifestly useless, or that such endeavors were not in fact made. The language may as well imply that they were made. Hence the defendant was entitled to notice of the failure to collect of Strong, before he could be subjected to an action on the guaranty. The general rule is, that where a person undertakes, in positive terms, for some future act to be done by himself, or a third person, he is to take notice of the performance or non-performance of the act, and notice from the other party is not required. Such are all the cases of absolute guaranty. But when he only stipulates that the other party shall be able, by his diligence, to effect a certain object, the case is different. He is not then supposed to know, nor does he assume to know, the measures taken, or the result. Notice is therefore required, for the reason assigned by Judge Swift that “ it would be against principle to admit a man to be sued, when he has no knowledge of the existence of the demand.” 1 Sw. Dig. 436. See also Marsh v. Badcock, 2 D. Chip. 125; Foster v. Barney, 3 Vt. 61; Sw. Ev. 348. If there is any exception to the rule [37] requiring notice in such a case, it is where the guarantor was conscious, that the demand was worthless, and therefore must have acted in bad faith. As notice to the defendant was necessary, it should have been alleged in the declaration. And it being an additional and distinct fact, the proof of which was not involved in the proof of any fact alleged, the verdict has not cured the defect. Judgment of county court reversed, and judgment on the verdict arrested.