Noyes & Co. v. Nichols. the plaintiffs and the principal of the 19th May provided for a purchase, and it is only necessary then to inquire, whether the guaranty, or letter of credit from the defendant to the plaintiffs, authorized a sale of the goods upon the strength of it; and of this, we think, there can be no serious question. The request to the plaintiffs is, to deliver, to the principal, merchandize and tin ware, upon commission or otherwise, accompanied with the promise of the guarantor to be accountable to the plaintiffs for all the contracts, or engagements of the principal, as the plaintiffs and he should agree. The construction of this letter of credit is too obvious, we think, to admit of debate, and we have no occasion to settle the rule of construction in relation to guaranties, which are ambiguous, that is, whether the construction shall be in favor of the guarantor, rather than the guarantee. Technical rules of construction are not to be resorted to where the meaning of the parties is plain and obvious. No doubt there are cases which go the length of holding that a contract of guaranty is one strictissimi juris, and is to be construed in favor of the guarantor, and to this effect is Nicholson v. Paget, 1 C. & M. 48; and see also Mellville v. Hayden, 3 B. & A. 593. But in the case of Mason v. Pritchard, 12 East 227, the com mon rule of construction of contracts, was applied to a guaranty, and the construction was against the guarantor, and in the late case of Mayer v. Isaac, 6 M. & W. 605, the case in the 12th of East was approved of. See also Hargrave v. Smee, 6 Bing. 244, and Drummond v. Prestman, 12 Wheat. 515. If it was important in this case, it might well be questioned whether, in this respect, there is any good ground for making contracts of guaranty an exception to the general rules in regard to construction. It is sufficient, for this case, to say that the letter of guaranty needs no extension by implication, in order to bring the plaintiffs' case, as found by the referee, within the plain and obvious scope of the defendant's guaranty. That it gave a right or power to the plaintiffs to consign the goods to the principal, to sell on commission, or to make a right out sale of them to him, if the parties should so agree, is beyond a reasonable doubt. It is said in argument, that if the contract of guaranty is held to be in the alternative, and to give to the plaintiffs and the prin Noyes & Co. v. Nichols. cipal an option, either to deliver the goods, to sell on commission, or upon a sale, then the plaintiffs must have given the defendant notice, in what manner that option had been exercised. We have no occasion to examine the soundness of this position, or even question. it. The referee finds, and, as we think, upon competent testimony, not only notice to the defendant of the plaintiffs' acceptance of this guaranty, and of their furnishing goods to the principal, relying upon it, but also, that such goods were sold, and not furnished on commission. The defendant would hardly claim, since the case of Oaks v. Weller, in the 16 Vt., that such notice must come from the plaintiffs, necessarily. We apprehend that the defendant had all the notice of the advancements made upon this guaranty, which the law can require. He knew the plaintiffs were furnishing goods to the principal from time to time, and had a general knowledge of about the amount of goods furnished. The object of the notice is to secure to the guarantor his rights, and means of protecting himself, and certainly, so far as the amount of his liability was concerned, if he knew about the amount, it was enough to put him on inquiry if he wished to know the precise amount, and it was all that was necessary for the security of the guarantor, and sufficient to enable him to act understandingly, as it respected his principal, either by recalling his letter of credit, or by requiring an indemnity from his principal, or by doing both, if judged advisable. In the case of Douglas et al. v. Reynolds et al., 7 Peters 126, it was held, that under a continuing guaranty, the law did not require notice of successive advancements under it, from time to time, as made, and that it was enough if the guarantor had notice of their amount when the business was closed. It is claimed in argument that, as the case does not show a demand of payment of the principal, and notice of non-payment to the defendant, in a reasonable time, the defendant is discharged from his guaranty. But we think this is not a case requiring, in this respect, any such action from the plaintiffs. The surety assumed to be accountable for all the contracts or engagements of the principal, as he and the plaintiffs might agree, and guaranteed the payment thereof, in case he did not fulfill them as agreed. Noyes & Co. v. Nichols. This is a direct and an absolute undertaking for the act of another. The addition of the words, " in case he does not fulfill them," does not alter the nature of the undertaking, or impose any duties on the plaintiffs, which would not exist without them. In Smith v. Ide, 3 Vt. 290, the words of the guaranty were, "Mr. Gilman says he has bought a pair of horses of you for $260, in sixty days. I will warrant him to pay according to his agreement." No demand upon the principal for payment, or notice of his default to the surety was held necessary to charge him. The same was held in Train & Co. v. Jones, 11 Vt. 444. In that case the principal wished to purchase a quantity of hides, and the language of the guarrantor was, "I will stand responsible for the fulfilment of any contract the principal, or his agent shall make." In Peck v. Barney, 13 Vt. 93, the language was, "if said claims are not paid or secured by the principal, within six months from the date, I do agree to secure or pay the same." Under the In that case the court say that, "a person who stipulates for a thing to be done by himself or another, is bound to see it done, and that notice was necessary only of that which the plaintiff was to do." See also Sylvester v. Downer, 18 Vt. 35. guaranty now before us, no act was required on the part of the plaintiffs towards getting their pay from the principal. They were only bound to receive it when offered to them. See Williams v. Granger, 4 Day 444. Lent v. Padelford, 10 Mass. 230. Breed v. Hilhouse, 7 Conn. 523. Douglas v. Howland, 24 Wend. 35. Under the decisions in this state, we think it is well settled that, in a case like the present, no demand of the principal was necessary to give a right of action against the principal, or the surety, and, of course, no notice of his default need be given to the surety; and such, we think, was the common law. It is a common principle that, if an act is to be done by a third person, who is known, no notice need be given. See Somersall v. Barnaby, Cro. Jac. 267. We, then, have no hesitation in holding, that the defendant would have been liable upon his first guaranty had not the principal's indebtedness for goods delivered under that guaranty been cancelled by his credits. We will now examine the plaintiffs' case, under their second guaranty. Noyes & Co. v. Nichols. It cannot be questioned that the defendant's waiver of acceptance of this guaranty, and of the proceedings of the plaintiffs under it, are binding upon him; Bickford v. Gibbs, 8 Cushing 154. It is found that the goods delivered to the principal, under the contract of the 18th of June, were delivered upon the faith of the second guaranty, but is claimed that the terms of that contract do not bring the plaintiffs' case within the fair scope of that guaranty. If such is the fact, most certainly the defendant cannot be charged upon it. But we cannot co view it. The guaranty, after reciting that the principal was desirous of obtaining, from time to time, goods upon a credit, binds the guarantor to a fulfilment of the principal's agreements with the plaintiffs, according to his contract. The contract between the plaintiffs and the principal, created a conditional sale of the goods delivered under it, and the provision in it, that the property of the goods should remain in the plaintiffs, until paid for, rendered it none the less a sale on credit. Though it was the object of the guaranty to enable the principal to obtain goods upon credit, yet the particular conditions and terms of the credit are purposely left with the principal to arrange with the plaintiffs. The guaranty is absolute in its terms, and as broad as it well can be, binding the defendant to a performance of the principal's contract, as thereafter to be made. We cannot see why the contract of the 18th of June is not within the fair scope of the second guaranty. The principal might well agree that the title of the goods should remain in the plaintiffs till their price was paid, and the provision in the contract securing to the principal the right, at his election, of returning the goods which should remain unsold at the end of the year, at a given discount, or to turn in barter pay, are provisions for the benefit of the principal, and increase his facilities for cancelling his debt, and thereby exonerate the surety. Of this the surety cannot complain. The principal's contract contains an express agreement to purchase the goods, and, upon a conditional sale, the relation of debtor and creditor is at once created between the vendor and vendee, and it is as much a purchase upon credit, as if the sale had been absolute in its terms. We apprehend that the defendant cannot complain of that provision, in the contract of the 18th of June, which provides that Noyes & Co. v. Nichols. payments shall be made for goods delivered, under the first contract, before any application shall be made on that one. The defendant stood liable, on his first guaranty, for the goods delivered on that contract, and the payment enured to his benefit equally as if applied on the last contract. The defendant had no equitable lien upon the goods, which could give him a right to have application first made on the last contract, and it cannot be maintained, upon the facts in this case, that the provision was in fraud of the surety whether communicated to him or not. The case of Pidcock et al. v. Bishop, 10 Com. Law 197, is widely different from the present case. In that case the pig iron was sold to the principal debtor by the plaintiffs, at its market value, under a secret agreement that he should pay, in addition to that, 10s per ton, to one of the plaintiffs, upon an old debt which he owed him individually, and this, it is true, was held to be a fraud upon the defendant, who had guaranteed to the plaintiffs the payment of £200 value, to be delivered to the principal in Lightmoore pig iron. This, it was said, was a diversion of a portion of the funds of the vendee from being applied to discharge the debt, which he was about to contract with the plaintiffs, and render the vendee less able to pay for the iron supplied to him, and that the surety had a right to expect that the funds arising out of the iron sold would be applied towards discharging the debt, which he had become collaterally responsible for; and that the surety had a right to have been informed of all those facts, which were likely to affect the degree of his responsibility. In the case now at bar, there was no diversion of the funds to the injnry of the surety, and the application is such as the law would have made, in the absence of any express agreement to the contrary. Although the contract of the 18th of June provides that the respective bills of goods, purchased by the principal, shall be payable from time to time, as promptly as payments can be made, yet this provision is to be taken in connection with the one which provides for the payment of the old debt first; and the contract is so to be construed, that all its parts may stand, which is not difficult, the last provision simply qualifying the former. It has been remarked already, that this guaranty is absolute, binding the surety to the fulfilment of the principal's contracts with |