Fay v. Hall , 25 Ala. 704 ( 1854 )

GOLDTHWAITE, J.

The writing which was the foundation of the action, was, in effect, an agreement on the part of Fay to be responsible to Hall as the surety of Scott, if the latter should hire of him two slaves, for the year 1847, at a price not exceeding two hundred and twenty dollars. It is clear this was not an original undertaking on the part of Pay, as it was not founded on any new consideration between himself and Hall, and because it is evident from the words used that he did not intend to charge himself as the original debt- or. He is to stand as “ security” for Scott — in other words, to become responsible for his engagement, which is in law a guaranty (Parsons on Con. 493) ; and this being the case, the rights of the parties must be determined by the principles which govern contracts of this character. In Lawson v. Townes, 2 Ala. 373, the letter of credit was future in its application, and uncertain in its amount; and it was held, that the guarantors were entitled to notice within a reasonable time that credit had been given to the principal debtor on the faith of the guaranty. In Donley v. Camp, 22 Ala. 659, the promise was an absolute, unconditional guaranty of a specific pre-existing debt; and we held, that in such a case no notice was necessary to be given to tbe guarantor, and that his liability was perfected by the failure of the principal to pay the debt when it became due. In the present case, as we have seen, the guaranty was future in its application, and the case falls within the influence of Lawson v. Townes, supra, and not that of Donley v. Camp.—See, also, Walker v. Forbes, at the present term. It may be, that the first decision is not sustained by the English cases ; but there is a strong current of American authorities in its favor (Lee v. Dick, 10 Pet. 482 ; Adams v. Jones, 12 ib. 207 ; Norton v. Eastman, 4 Greenl. 521 ; Tuckerman v. French, 7 ib. 115 ; Kay v. Allen, 9 Barr 320 ; Howe v. Nickles, 22 Maine 175 ; Hill v. Calvin, 4 How. (Miss.) 231 ; Taylor v. Wetmore, 10 Ohio 490 ; Mussey v. Rayner, 22 Pick. 223 ; Croft v. Isham, 13 Conn. 28) ; and we do not feel at liberty to depart from them.

It follows from what we have said, that in order to render Fay liable, it was essential that he should have had notice within a reasonable time that his guaranty was accepted by Hall; and as such notice is of the gist of the action, it should be averred in the declaration. — Lawson v. Townes, supra.— The first count of the declaration sets out the guaranty,— avers that Hall, confiding in the promise of Fay, hired the slaves to Scott for the year 1847, for the sum of two hundred and twenty dollars ; that although the hire has become due, Scott has failed to pay the same, and that Fay had notice of these facts and failed to pay on request, &c. We regard the general allegation of notice as to the antecedent premises sufficient, as there are facts stated in the declaration on which it could operate (Lawson v. Townes, 2 Ala. 373, 376; Carlisle v. Cahaba Railroad Co., 4 Ala. 70; Gause v. Hughes, 9 Por. 552); and the reasonableness of the notice cannot arise upon the pleadings, but depends on the testimony to be disclosed on the trial.—Boot v. Franklin, 3 Johns. 208. This distinguishes the present case from that of Walker v. Forbes, at the present term, in which the facts set forth are not sufficient to charge the defendant without notice.

The second count, however, is defective, as it alleges that the guaranty was made b}r Fay in consideration that a credit should be given by Hall to Scott for the hire of the negroes, and that the slaves were hired upon a credit, but .does not state the time of credit, or when the amount to be paid for the hire became due. The third count is also defective, in not averring the non-payment of the debt by the principal debtor, to whom it alleges the credit was given on the faith of the promise by Fay to secure the amount. It describes the undertaking of Fay as a guaranty, and shows that he is only to answer in default of Scott, and then seeks to charge him as if he had been the original debtor, by resting his liability simply on, his failing to pay the debt which he had undertaken his principal should pay. The fourth count is bad for the same reason, and also because, while it avers that the consideration of the promise on the part of Fay was in fact a credit to Scott for the hire, it does not allege the time of such credit.

The court, therefore, erred in overruling the demurrer to the second, third and fourth counts ; and also in the charge given, which was, in effect, that Fay was liable as an original promisor, and in holding that he was liable otherwise than as a guarantor.

As the points decided will probably be decisive of the case, on another trial, we consider it unnecessary to determine the other questions presented.

Let the judgment be reversed, and the cause remanded.