Gamage v. Hutchins ( 1844 )

The opinion of the Court was drawn up by

Whitman C. J.

The note in suit was made by one Rice, and indorsed to the plaintiff, with a guaranty, that the note should be paid to the plaintiff The note was payable on demand. At the time of the indorsement and guaranty Rice was solvent; and so continued for about two years thereafter, during which time it does not appear that the plaintiff made any effort to collect the note. Such negligence, should ordinarily exonerate the guarantor from liability. Oxford Bank v. Haynes, 8 Pick. 423; Talbot v. Gay 18 ib. 534; Story on Bills of Exc. 344 and note.

But it is insisted, on the part of the plaintiff, that the defendant has waived this ground of defence, by acknowledging his liability, and promising to pay the amount due, if Rice did not. And he contends that this case is similar in principle to the case of a simple indorser of a promissory note of hand, when demand of payment and notice of default, has not been given and still the indorser acknowledges himself holden to pay it. In this case it does seem to have been proved, that the guarantor, the defendant, at two different times recognized his liability to pay the amount due in case Rice should not; and we are not disposed to question the similitude in this respegt, between that of a guarantor, and that of an indorser simply. But it should distinctly appear, that the recognition was made, after laches of the holder had taken place, in the case of a simple indorsement; and, in the case of a guarantor, after the holder had unreasonably delayed to enforce payment, until the promisor had become insolvent. In the present instance, however, we are unable to ascertain, from the case as presented in the copies furnished, whether the acknowledgments relied up on were made before or after Rice had failed. By one witness it is stated, that what he heard, was in June or July, four years ago ; and by the other, that the conversation he heard was about three years ago; and it does not appear in the copies furnished, whether these acknowledgments took place before or after Rice failed ; the times of taking the testimony not being stated.

We however, do not deem it material to ascertain when they were made. It must be considered as undeniable, that, to render an indorser or guarantor liable in either of such cases, any acknowledgment of liability, or promise of payment, must, in order to be effectual, be made with a full knowledge of the want of due diligence on the part of the holder; and such fact must be proved by the plaintiff, if he would avoid the effect of his laches. In the case here it does not appear, that the defendant, when he made the admissions relied upon, had any knowledge that Rice had remained solvent for two years after the giving of the guaranty, and had then failed, if such fact had then taken place ; and if it had not then taken place, the acknowledgments proved were nothing more than a recognition of the liability, originally created, as still existing, without any such concession.

Under such circumstances, we can have no doubt, that the plaintiff should become nonsuit.