Copeland v. Wadleigh

7 Me. 141

Opinion

WestoN J.

delivered the opinion of the Court at the ensuing July term in Waldo.

The request and order, addressed by Godfrey to the plaintiff, explain the nature of the assistance wanted of him. The defendant undertook to be responsible, as they might agree. He thereby assumed to pay whatever might be stipulated by Godfrey ; within the scope of the request under and upon which the guaranty was written.* The agreement between Godfrey and the plaintiff, might be proved by any person present when it was made. It was not necessary that it should be concluded in the presence and hearing of the defendants Godfrey was clothed with full power to bind him. The testimony of the witness objected to, was not in the nature of hearsay ; it verified and established the agreement, for the performance of which on-one side, the defendant held himself answerable.

As to the charge for the hay.and the corn, it was distinctly stated in the order of Godfrey, and was necessary for the support of the team, to which it was applied; and may well be considered as included in the engagement of the defendant.

The jury have found, under the direction of the judge, that the plaintiff gave notice to the defendant of the acceptance of his proposition ; and there was ample testimony to support this finding, and of the extent of the services performed, and of the supplies furnished. When the guaranty of the defendant was accepted, and notice given to him to that effect, and the order was complied with, his liability was fixed, without any further condition or duty to be performed by the plaintiff. This belongs to the first class of cases, laid down by Chief Justice Kent, in Leonard v. Vredenburgh, 8 Johns. 29, “ in which the guaranty or promise is collateral to the principal ■ contract, but is made at the same time, and becomes an essential ground of the credit given to the principal or direct debtor.” The promises of bpth are concurrent; and an action may be prosecuted against each, until satisfaction is obtained.

The case before us bears a very strong resemblance to that of Duval & al. v. Trask, 12 Mass. 154. The party for whose use the goods, sued for in that action, were furnished, had given his promissory note therefor to the plaintiffs, but the goods were delivered upon the credit of the defendant, who had undertaken by letter, previously written, to be responsible for them. The court denominate this engagement an original undertaking, collateral to the promise of the vendee, as security. When a guaranty has been accepted, and notice given by the party intended to be secured, where notice is necessary, the liability of the guarantor attaches, according to the terms of his agreement; and there is no necessity for averring or proving a demand, in order to sustain an action against him. The objection therefore made by the counsel for the defendant, at the trial below, that no demand of payment had been made upon the •defendant, prior to the commencement of the action, could not avail him. The judge it is true, in his charge to the jury, when considering this objection, uses the term collateral, instead of conditional, which would have better expressed the idea he intended to convey, and in that sense stated that the plaintiff had declared upon an original, and not upon a collateral, undertaking$ and then left it to the jury, whether, from the evidence, this was not an original undertaking, in contradistinction to collateral, as he uses the term. The contract, on the part of the defendant, was undoubtedly collateral; but if there was a want of precision in the language of the judge in answering this objection, If the objection itself has no weight, it cannot affect the verdict. So if the judge left certain questions to the jury, as to the construction and effect of the contract, which it was his province to decide, if they have come to the proper result, their verdict is not to be disturbed. This court upon exceptions, are to do w Ímí to law and justice may appertain. Being satisfied that the ver-d'c.i is right, upon the contract and evidence adduced, judgment is to be rendered for the plaintiff.