W. S. Bloom & Co. v. Warder, Mitchell & Co.

Cobb, J. There are but two questions presented by the record in this case: 1. Is the defendant below still bound by his guaranty of the payment of the notes ? 2. Are the findings and judgment of the district court sustained by the evidence ? Answering the second question first, there is a clear conflict between the testimony of the plaintiff in error on his own behalf, and his witness, Adams, on the one part, and the several witnesses whose depositions were read on the other part. There is some evidence in support of the plaintiff’s theory of the case as to each material point; and indeed, taking into consideration the undisputed facts as to the amount of the open account between the parties, the amount of money paid by the defendant, and the circumstances connected with the guaranteed notes, we think the preponderance of testimony is with the view taken by the district court, and it would have to be overwhelmingly against it to justify this court in reversing the judgment on that ground. [478] As to tbe first question, we think there can be no doubt the notes sued on were all drawn payable to the order of the plaintiffs, Warder, Mitchell & Co., and were endorsed as follows: “ For value received we guarantee the payment of the within note, and hereby waive protest, demand and notice of non-payment thereof. W. S. Bloom & Go.” This is an absolute contract for a lawful consideration, that the money expressed in the note shall be paid at the maturity thereof at all events, and depends in no degree upon a demand of payment of the maker of the note, or any diligence on the part of the holder. See Brandt on Surety and Guaranty, sec. 170, and authorities there cited. This case must be distinguished from cases of guaranty " of collection of notes, in which class of cases it has been held that before an action would lie against the guarantor prompt and exhaustive steps must be taken to collect the money from the maker. See authority above and cases cited at secs. 83 and 84. The judgment of the district court is affirmed. Judgment affirmed.