Williams v. Staton , 13 Miss. 347 ( 1845 )

Mr. Justice ThacheR.

delivered the opinion of the court.

This was a writ of error to Tallahatehee county circuit court. The case shows a special action of assumpsit to enforce a written contract of guaranty. The declaration contains three counts, to the first of which a general demurrer was filed, and to the second and third a special demurrer, assigning, as causes, insufficient averments of notice and breach.

The first and second counts allege no breach by the defendant, and are consequently bad.

In regard to the matter of notice, in actions of this kind, the rule is, that, in cases of written guaranty for a debt yet to be created, and of an amount not yet ascertained, the guarantor should have notice, in a reasonable time, that the guaranty is accepted, and that credit has been given on the faith of it. Mussey v. Rayner, 22 Pick. 223. The third count of the declaration in this case for an obligation of notice to the defendant, makes the averment in these words, to wit; “ of all which the said defendant afterwards had due notice.” An averment of notice in words similar to the foregoing, seem to have been treated by this court as sufficient, even upon the supposition that notice, by the nature of the action, is required to be proved, and we must therefore hold the averment of notice, in the third count of this declaration, to be sufficient. Thrasher v. Eli, use, &c. 2 S. & M. 149.

The judgment of the court below, in sustaining the demurrer to the first and second counts of the declaration, is therefore affirmed, but it is reversed as to its judgment sustaining the demurrer to the third count; which demurrer is directed to be overruled, and the cause remanded for further proceedings.