Taylor v. John A. Tolman Co.

Mr. Justice Phillips. When an offer is made to guarantee a debt about to be created, and the party making the offer does not know that it will be accepted so that he may be ultimately liable, no.contract exists between the person making the offer and the party to whom the guarantee was made until the offer is accepted and notice given thereof to the guarantor and of the intention to act under it. Newman v. Streator Coal Co., 19 Ill. App. 594; Mussey v. Rayner, 22 Pick. 223; Allen v. Pike, 3 Cush. 238; Babcock v. Bryant, 12 Pick. 133; Horton et al. v. Eastman, 4 Greenl. 521; Tuckerman v. French, 7 Id. 115; Douglas v. Reynolds, 7 Pet. 113; Edmonson v. Drake, 5 Id. 634; Adams v. Long, 12 Id. 207. And the principle applicable to continuing guaranty is, until acted upon and notice given, the guarantors will not be liable. But when one guarantees the performance of an act or liability as a present undertaking, and for a consideration, the guarantor is in such case liable according to the terms of his contract and without notice, for in such case the liability of the guarantor is primary. Davis v. Wells, Fargo and Co., 14 Otto, 159; Voltz v. Harris, 40 Ill. 155. And even though the contract, as here, purports to be a continuing guaranty, the principle applicable to strictly continuing guaranties was held in the case in 14th Otto as not applicable. Under this contract a consideration is recited and the defendants can not be heard to say that the consideration was not received, and the recital of the payment of that consideration was the acceptance of the guaranty, and the general principles applicable to a continuing guaranty do not extend to the bond of an ordinary agent. Estate of Michael Rapp v. The Phœnix Insurance Company, 113 Ill. 390. The j udgment is affirmed.