Bush v. Critchfield ( 1829 )

By the Court :

It is a general rule, that where a matter does not lie more properly in the knowledge of one of the parties than the other, notice is-not requisite; therefore, if a man is bound, by obligation of covenant, or promises to do a thing, on the performance of an act by a stranger, notice need not be alleged, for it lies in the defendant’s knowledge, as much as the plaintiff’s, and he ought to take notice at his peril. 2 Saund. 62, n. 4; 2 Chit. 81; 11 Johns. 61.

The defendants have covenanted, in general terms, to hold themselves accountable for the fidelity of McConnel, and that he should render a true account for one year; and if it had been the intention of parties, that the obligors should have notice, that should have been inserted in the condition. A party who covenants generally, to do a particular thing, is bound at all events. Duffield v. Scott, et al., 3 Johns. 374, The plaintiffs had less to do with the supervision of McConnel’s conduct than the defendants; nor had they any better means of ascertaining that he was converting the proceeds of the goods to his own use. The plaintiffs did not reserve the power of visitation, nor did they covenant to notify the defendants of McConnel’s mode of transacting the business. The defendant, in consideration of a ruff-band delivered to him, promised to pay to him, on the day of the plaintiff’s marriage, three pounds, and alleged he was married such a day, yet although often requested he had not paid. There was a judgment of nihil dicit and inquiry. A motion was made in arrest of judgment, because there could be. no breach of promise unless notice was given of the plaintiff’s marriage; but Hutton, Harvey, and Telverton adjudged it to be good enough, for the defendant, at his peril, ought to take notice, and the plaintiff need not show he gave notice *of the marriage. Croke Car. 34. In the case of Norris et al. v. Powell, 14 East, 510, a bond had been taken by the commissioners of the land tax for the fidelity of a collector. It was objected that no notice had been given to the surety, of the collector’s default, nor demand of payment made, until after the principal bad been discharged for misconduct; but both points were overruled by the court. Fell on Guaranties, 224. The defendants do not assume the position, that there is any express covenant to give notice, or even covenant in law to do it; but rather place their case upon principles of commercial law.. But certainly there is no just analogy between principles and surety in a bond, and the drawer and indorser of a bill of exchange, so far as legal principles fix their liabilities. The liability of an indorser is conditional, and entirely arbitrary. His undertaking is conditional, that he will be holden, upon demand and refusal of the drawer, and notice of those facts. This condition, though not expressed, is of the essence of the contract. There is no such contract implied in sealed instruments. If parties wish to have and give notice, they must so covenant, and then the non-performance might be assigned as a breach. As this instrument stands, there is no express covenant to give notice to the defendants of McConnel’s default, nor are the covenants such as to raise any in law. From the nature of the covenants, the defendants were bound, at their peril, to take notice of the breaches.

Demurrer to the replication overruled, and costs taxed to the defendants since filing, and the cause continued for inquiry of damages.