Mr. Justice Craig
delivered the opinion of the Court:
This was an action brought by Reid, Murdoch & Fischer against E. Kohn and ffm. Taussig, on the following written instrument:
“Reid, Murdoch & Fischer, Chicago:
“Chicago, January 14, 1887.
“For value received, I hereby guarantee the prompt payment at maturity of any indebtedness owing to Reid, Murdock & Fischer, by Mrs. Mathilde Zuclcerman, of 370 State street, and 214 and 216 North Clark street, Chicago, for goods purchased, or which may be purchased hereafter of them, to the amount of fifteen hundred dollars ( $1,500.00), with interest on all the above indebtedness, according to the tenor and effect thereof, at the rate of eight per cent per annum, and I agree to pay all costs or expenses paid or incurred in collecting the same.
Signed at Chicago, this 14th day of January, 1887.
“Witness: Jos. Zuckermast. (Signed) E. ICohx.
(Signed) Wm. Taussig.”
In the Circuit Court the plaintiffs recovered a judgment for $1,680.34, the amount named in the instrument, and interest thereon from the time the action was brought. The judgment, on appeal, was affirmed in the Appellate Court, and for the purpose of reversing the latter judgment this appeal was taken. It appears from the record that, immediately upon the execution and delivery of the writing, Reid, Murdoch & Fischer commenced selling goods' to Mrs. Zuclcerman on credit, and continued the sales until November 23, 1887. Her indebtedness to the firm varied in amount from time to time. On the first day of June, 1887, she was indebted in the sum of $1,762.30. On the 1st of July, 1887, $1,958,39. On the 1st of August, 1887, $1,925.98. On the 1st of September, $2,112.68. On the 1st of October, 1887, $2,342.80. On the 1st of November, 1887, $2,389.51. On November 23, 1887, when the account was closed, $2,714.96.
Mrs. Zuclcerman failed on the 24th day of November, 1887, and this action was brought on the guaranty December 9th following. No notice was given the defendants by Reid, Murdoch & Fischer of the failure of Mrs. Zuclcerman to pay for the goods which she purchased, and it was insisted on the trial that her insolvency, and the failure of Reid, Murdoch & Fischer to give notice of her default in payment, relieved the guarantors from liability on the guaranty. But the court held otherwise, and in the first instruction on behalf of plaintiffs the jury were authorized to find for the plaintiffs, although demand and notice of non-payment had not been established, and the soundness of this ruling is the principal, and indeed the only, question of any importance presented by the record.
Whether notice of the default of a principal debtor is required in order to fix the liability of a guarantor on a contract like the one involved, is a question upon which the authorities are conflicting. We shall not attempt to review the authorities at length, nor shall we attempt to harmonize the various decisions bearing upon the question, but we shall content ourselves by stating what we understand to be the law on the subject, as established by the weight of authority.
Story on Contracts, vol. 2, sec. 1133, in the discussion of the question, says: “Whenever the undertaking by a guarantor is absolute, notice is unnecessary, but where it is collateral merely, notice must be given within a reasonable time, otherwise the guarantor will be discharged, unless he is not prejudiced by the want of notice.” In Baylies on Sureties and Guarantors, 202, the author says: “It may be laid down as a general rule, that in case of an absolute guaranty the guarantor is not entitled to demand or notice of non-performance, but where the undertaking is collateral, and not absolute, notice must be given within a reasonable time, unless circumstances exist which will excuse the want of notice. If the principal is insolvent when the-debt becomes due or default is made, so that no benefit could be derived by the guarantor from the receipt of notice, no notice is required.”
Where the payee of a promissory note or third parties execute a contract written on the back of an unconditional promissory note for the payment of money at a specified time, in which they guarantee the payment of thepromissory note at maturity, the holder of the note is under no obligation to demand payment of the maker, and, on default of payment, notify the guarantors. The reason is obvious. The contract of the guarantors is absolute and unconditional, and it requires payment by the guarantors upon maturity of the note. This rule is clearly laid down in Gage v. Mechanics National Bank of Chicago, 79 Ill. 62, and is well sustained by authority. The principle upon which this doctrine rests is that the contract is absolute, and not conditional or collateral. But does the contract upon which this action is brought rest upon the same principle, or is it to be governed by a different rule ? Is the contract in question an absolute contract, or is it collateral or conditional? By the terms of the agreement the appellants guaranteed appellees payment to the amount of $1,500, for goods purchased, or for goods which might thereafter be purchased of them, by Mathilde Zuckerman.
It is not claimed that any liability exists on account of goods purchased before the execution of the guarantee, so that the words embraced in the guaranty, “for goods purchased, ’ ’ has no special bearing in construing the agreement. It will be observed that the amount of the goods which might be purchased, nor the time during which the deal between Mrs. Zuckerman and appellees should continue, was not mentioned or determined. The contract did not compel Mrs. Zuckerman to purchase or appellees to sell a dollar’s worth of goods. They could deal with each other as much or as little as they might desire or as they might see proper. After the guaranty was executed, if appellees chose not to sell Mrs. Zuckerman any goods, it could not be claimed that an absolute guaranty existed, because there was no debt upon which it could operate. How can a guaranty be absolute where it is uncertain whether a debt will ever exist to which it could apply? We think it is manifest that the guaranty was not an absolute undertaking, but, on the other hand, the contract in question was a continuing guaranty of a debt to be created in the future, of an indefinite amount, depending entirely upon the will of appellees and Mrs. Zuckerman.
In Douglass v. Reynolds, 7 Peters, 113, where an action was brought on a guaranty of $8,000, on account of the advancement of cash or acceptance or indorsement of the principal’s paper to assist him in business, it was held that demand of payment and notice to the guarantors were required. It is there said: “By the very terms of this guarantee, as well as by the general principles of law, the guarantors are only collaterally liable upon the failure of the principal debtor to pay the debt. * * * The creditors are not indeed bound to institute any legal proceedings against the debtor, but they are required to use reasonable diligence, to make demand and to give notice of the non-payment.’ ’ In McDougal v. Calef, 34 N. H.
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Mr. Justice Craig
delivered the opinion of the Court:
This was an action brought by Reid, Murdoch & Fischer against E. Kohn and ffm. Taussig, on the following written instrument:
“Reid, Murdoch & Fischer, Chicago:
“Chicago, January 14, 1887.
“For value received, I hereby guarantee the prompt payment at maturity of any indebtedness owing to Reid, Murdock & Fischer, by Mrs. Mathilde Zuclcerman, of 370 State street, and 214 and 216 North Clark street, Chicago, for goods purchased, or which may be purchased hereafter of them, to the amount of fifteen hundred dollars ( $1,500.00), with interest on all the above indebtedness, according to the tenor and effect thereof, at the rate of eight per cent per annum, and I agree to pay all costs or expenses paid or incurred in collecting the same.
Signed at Chicago, this 14th day of January, 1887.
“Witness: Jos. Zuckermast. (Signed) E. ICohx.
(Signed) Wm. Taussig.”
In the Circuit Court the plaintiffs recovered a judgment for $1,680.34, the amount named in the instrument, and interest thereon from the time the action was brought. The judgment, on appeal, was affirmed in the Appellate Court, and for the purpose of reversing the latter judgment this appeal was taken. It appears from the record that, immediately upon the execution and delivery of the writing, Reid, Murdoch & Fischer commenced selling goods' to Mrs. Zuclcerman on credit, and continued the sales until November 23, 1887. Her indebtedness to the firm varied in amount from time to time. On the first day of June, 1887, she was indebted in the sum of $1,762.30. On the 1st of July, 1887, $1,958,39. On the 1st of August, 1887, $1,925.98. On the 1st of September, $2,112.68. On the 1st of October, 1887, $2,342.80. On the 1st of November, 1887, $2,389.51. On November 23, 1887, when the account was closed, $2,714.96.
Mrs. Zuclcerman failed on the 24th day of November, 1887, and this action was brought on the guaranty December 9th following. No notice was given the defendants by Reid, Murdoch & Fischer of the failure of Mrs. Zuclcerman to pay for the goods which she purchased, and it was insisted on the trial that her insolvency, and the failure of Reid, Murdoch & Fischer to give notice of her default in payment, relieved the guarantors from liability on the guaranty. But the court held otherwise, and in the first instruction on behalf of plaintiffs the jury were authorized to find for the plaintiffs, although demand and notice of non-payment had not been established, and the soundness of this ruling is the principal, and indeed the only, question of any importance presented by the record.
Whether notice of the default of a principal debtor is required in order to fix the liability of a guarantor on a contract like the one involved, is a question upon which the authorities are conflicting. We shall not attempt to review the authorities at length, nor shall we attempt to harmonize the various decisions bearing upon the question, but we shall content ourselves by stating what we understand to be the law on the subject, as established by the weight of authority.
Story on Contracts, vol. 2, sec. 1133, in the discussion of the question, says: “Whenever the undertaking by a guarantor is absolute, notice is unnecessary, but where it is collateral merely, notice must be given within a reasonable time, otherwise the guarantor will be discharged, unless he is not prejudiced by the want of notice.” In Baylies on Sureties and Guarantors, 202, the author says: “It may be laid down as a general rule, that in case of an absolute guaranty the guarantor is not entitled to demand or notice of non-performance, but where the undertaking is collateral, and not absolute, notice must be given within a reasonable time, unless circumstances exist which will excuse the want of notice. If the principal is insolvent when the-debt becomes due or default is made, so that no benefit could be derived by the guarantor from the receipt of notice, no notice is required.”
Where the payee of a promissory note or third parties execute a contract written on the back of an unconditional promissory note for the payment of money at a specified time, in which they guarantee the payment of thepromissory note at maturity, the holder of the note is under no obligation to demand payment of the maker, and, on default of payment, notify the guarantors. The reason is obvious. The contract of the guarantors is absolute and unconditional, and it requires payment by the guarantors upon maturity of the note. This rule is clearly laid down in Gage v. Mechanics National Bank of Chicago, 79 Ill. 62, and is well sustained by authority. The principle upon which this doctrine rests is that the contract is absolute, and not conditional or collateral. But does the contract upon which this action is brought rest upon the same principle, or is it to be governed by a different rule ? Is the contract in question an absolute contract, or is it collateral or conditional? By the terms of the agreement the appellants guaranteed appellees payment to the amount of $1,500, for goods purchased, or for goods which might thereafter be purchased of them, by Mathilde Zuckerman.
It is not claimed that any liability exists on account of goods purchased before the execution of the guarantee, so that the words embraced in the guaranty, “for goods purchased, ’ ’ has no special bearing in construing the agreement. It will be observed that the amount of the goods which might be purchased, nor the time during which the deal between Mrs. Zuckerman and appellees should continue, was not mentioned or determined. The contract did not compel Mrs. Zuckerman to purchase or appellees to sell a dollar’s worth of goods. They could deal with each other as much or as little as they might desire or as they might see proper. After the guaranty was executed, if appellees chose not to sell Mrs. Zuckerman any goods, it could not be claimed that an absolute guaranty existed, because there was no debt upon which it could operate. How can a guaranty be absolute where it is uncertain whether a debt will ever exist to which it could apply? We think it is manifest that the guaranty was not an absolute undertaking, but, on the other hand, the contract in question was a continuing guaranty of a debt to be created in the future, of an indefinite amount, depending entirely upon the will of appellees and Mrs. Zuckerman.
In Douglass v. Reynolds, 7 Peters, 113, where an action was brought on a guaranty of $8,000, on account of the advancement of cash or acceptance or indorsement of the principal’s paper to assist him in business, it was held that demand of payment and notice to the guarantors were required. It is there said: “By the very terms of this guarantee, as well as by the general principles of law, the guarantors are only collaterally liable upon the failure of the principal debtor to pay the debt. * * * The creditors are not indeed bound to institute any legal proceedings against the debtor, but they are required to use reasonable diligence, to make demand and to give notice of the non-payment.’ ’ In McDougal v. Calef, 34 N. H. 534, in an action on a guaranty for goods purchased, it was held that where the undertaking was absolute, notice is unnecessary; but where it is collateral merely, notice must be given within a reasonable time, otherwise the guarantor will be discharged, unless he be'not prejudiced by the want of notice. In Smith v. Bainbridge, 6 Blackford, 12, in an action against a guarantor for goods sold to another, the contract was held to be collateral. It is there said: “Letters of credit * * frequently state, in express terms, that if the third party do not pay, the writer will. But the insertion or omission of such statement is not the test by which to determine the character of the contract. If the writer states that he will guarantee the payment of the goods to be afterwards sold to another, or that he will see the goods paid for, or that he will be security for their payment, the promise is only collateral. In the same case it was also held that demand of payment from the principal and notice of non-payment to the guarantor was required. In Babcock v. Bryen, 12 Pick. 133, where an action was brought on an agreement, which read as follows: “New Bedford, November 20, 1826. This is to certify that I, the subscriber, do hereby agree to be responsible and pay Messrs. Babcock & Allen for whatever goods have been or may be delivered to Thos. C. Case.” In passing upon the obligation of the parties to the contract, the court said “the question is whether the promise is to be considered as an original or a collateral undertaking. We think it is the latter. * * * The claim of the plaintiffs is for goods delivered after the making of the promise, for which Case gave to them his negotiable note. If he were not the principal debtor, it is difficult to account for the plaintiffs’ having taken the note of him.' They must have understood that he was liable in the first instance. It would follow, that the meaning of the parties to the contract now in question was that the defendant was to be liable to pay if the principal debtor did not, and if the defendant should have reasonable notice of the default of the principal.”
In Mussey v. Raynor, 22 Pick. 223, which was an action on a guaranty, it is said: The general rule of law on this subject seems now to be well settled, requiring that in cases of a written guaranty for a debt yet to be created and uncertain in its amount, the guarantor should have notice in a reasonable time that the guaranty is accepted and that credit has been given upon the faith of it. See also Allen v. Pike, 3 Cush. 238; Norton v. Eastman, 4 Greenleaf, 521; Howe v. Nichols, 22 Me. 175; 2 Parson on Contracts, 28.
Here the appellants were apprised when they executed the guaranty that it was accepted by appellees; no further notice of acceptance was, therefore, required. But while the testimony disclosed that Mrs. Zuckerman became insolvent on the 24th day of November, 1887, no notice of her default in payment was furnished to appellants before her failure. We think that the decided weight of authority establishes the rule, that in case of a collateral continuing guaranty, like the one in question, reasonable notice of the default of payment on the part of the principal debtor should be given to the guarantor. And the guarantor will be discharged from payment, so far as he has sustained loss or damage, resulting from a failure of the creditor to give him such notice. Tiedeman on Com. Paper, 421. Cases may arise where notice would result in no benefit whatever to the guarantor; for example, where the principal debtor was insolvent when the guaranty was executed and remained' in that condition. In such cases the failure to give notice could result in no loss to the guarantor, and could not be relied upon as a defense to an action on the guaranty. But where the guarantor may be able to protect himself, notice of default in payment imposes no unreasonable hardship on the creditor, and every principle of commercial usage requires that it should be given.