Wolfe v. Brown , 5 Ohio St. 304 ( 1855 )

J. R. Swan, J.

The case of Bashford v. Shaw, 4 Ohio St. Rep. 263, determines the question raised in this case upon the motion for a nonsuit.

The guaranty in this case was conditional, and no liability could accrue upon it against the defendant below, if the note against Salisbury could by reasonable diligence have been collected. The “collection” named in the guaranty required the plaintiff below to sue Salisbury to judgment, if the note could not be otherwise collected.

The law relating to demand and notiee to charge indorsers of commercial paper, has no application to a case of this kind. This guaranty is a special agreement, to be enforced according to its terms. Demand upon the principal, and notice of non-payment to the guarantor, are in general required, because the terms of the guaranty are such that the guarantor was not to be liable unless upon certain conditions, of which he should have notice. The notice in such case need not, in general, be given with the same promptness as is required by mercantile law in respect to commercial paper ; and the delay to give the notice, affords the guarantor no defense, if in fact he could not have been injured by the delay.

In the case before us, the plaintiff below was bound to sue the note within á reasonable time. Notice that the note could not be collected, should also have been given within a reasonable time; and if so long delayed that the defandant below was prejudiced thereby, it is clear that the defendant below must be discharged, at least to the extent that he may have been prejudiced thereby. It is true, that if the plaintiff below, immediately after the execution against Salisbury was returned “ no goods,” had given the defendant below notice under the guaranty, the return of the constable might have been, in the absence of all collusion, conclusive evidence that due diligence had been used to collect the note ; and the subsequent solvency or insolvency of Salisbury would not have affected the right of the plaintiff below to recover upon the guaranty. But the plaintiff below had, down to the year 1846, three years after the constable had made a return of “ no goods,” omitted to give notice that he had not collected the note. The defendant offered to prove that at this time (1846) Salisbury had personal property subject to levy and sale on execution, and that in the fall of that year, by reason of a loss by fire, he became insolvent. This testimony was overruled by the court. We think it should have been received, as it tended to show that the defendant below had been injured by delay in giving him notice that the note could not be collected.

Judgment reversed.