Merrill et als. v. Englesby, Tr.

had assumed any similar undertaking. This was not a collateral promise. If it were, a third person who undertakes to keep property of one person, to save a debt to another, could never be called to an account, unless the undertaking was in writing. But no one ever entertained any such belief. There is no duty upon the trustee which is not new and original, and without any other similar duty upon another, to which it is collateral. The case of a trustee who owes a debt to the principal debtor and promises, by parol merely, and without any new consideration, or being released by the principal debtor, to pay it to the claimant, is certainly not, in any sense, analagous to the present.

It will be obvious, that the view here adopted is possibly, to some extent, at variance with one line of argument adopted by me, in my opinion in Mussey v. Noyes & Co. But I have no occasion here to vindicate the correctness of what I may have said in that case. I adopted the view of the New York cases upon that subject, as I there say, contrary to my convictions of the justice and propriety of the case; and if the view we now take is, in any sense, in conflict with any of the views there put forth, which is not altogether certain, I must say, that the New England cases upon this subject, to the extent necessary to be here adopted, seem to us altogether sound. And had precisely the same view been taken of the subject in Noyes v. Mussey, the result must there have been the same, in all respects, that it was.

This case may very properly be decided upon the views adopted in Bradley & Co. v. Dow & Trustees, one year since, in this county, that as the plaintiffs here attempt to charge the trustee under the statute, they recognize the assignment from the debtor to him, as creating a valid trust, sufficient to enable him to hold the property under the statute; and while they attempt to charge the trustee under the statute, they must be content to allow him all the rights which the statute accords to him, one of which is to retain enough to pay what the principal debtor owes him. And no question has ever been made, that he might, under this provision, retain any amount of property or money which he had become legally bound to pay to any third party, on account of the principal debtor, before the service of the trustee process.

It would seem, from the finding of the court upon the issue

Noyes & Co. v. Nichols.

joined, that a sufficient trust, in favor of the claimants, was created by the contract of the parties, altogether independent of the assignment, to bind the trustee to hold the property for them. But we think it not very material, whether the trust is under the assignment, or independent of it. The creditors, all of them, so long as they acquiesce in the doings of the assignee, ought to be bound by it; and they must also be bound by any new and legal obligations which the assignee shall assume after the assignment, and before the service of the trustee process as much as by his proceedings under the assignment.

statute.

We have not been able to discover any sufficient reason, why the decision of the county court, in admitting the claimants to become parties to the suit, was not in strict compliance with the' "If it shall appear that any goods, effects or credits in the hands of any supposed trustee are claimed by any other person, by force of an assignment of the principal debtor, or otherwise, the court may permit such claimant to appear." Judgment affirmed.

M. NOYES & Co. v. IRA J. NICHOLS.

Guaranty. Proof of notice of acceptance, &c. Construction and requirements of, &c., &c. Discharge of, &c.

Testimony showing the object for which a guaranty was given, that the guarantor was present when it was delivered, and knew of a purchase of goods which the principal made under a contract contemplated by the guaranty, the guarantor's acquaintance with the business of the principal, and his general knowledge respecting the business transactions between the principal and the party to whom the guaranty is addressed, is admissible for the purpose of proving notice to the guarantor of the acceptance of the guaranty, and of the transactions of the other parties under it.

Notice to the guarantor of "about the amount" of the advancements which are made to the principal, on the credit of the guaranty, is all the notice which, in this respect, need be given.

Noyes & Co. v. Nichols.

Technical rules are not to be resorted to in the construction of a guaranty where the meaning of the parties is plain and obvious.

The defendant promised the plaintiffs that if they would furnish N. with merchandise "upon commission or otherwise," the defendant would be accountable for all N.'s contracts and engagements, and, if he did not fulfill them as agreed, the defendant would guarantee the payment thereof. Held, that the defendant was liable, under such a guaranty, for merchandise which the plaintiffs made a direct and absolute sale of to N.

Held, also, that, under such a guaranty, it was not necessary that payment should first be demanded of the principal, and notice of his default be given to the guarantor, for the purpose of rendering him liable.

Where a guaranty is absolute and binds the surety to the fulfilment of the principal's contract unconditionally and in general terms, no demand of payment of the principal and notice of his default is necessary to charge the guarantor. The defendant informed the plaintiffs that N. was desirous of obtaining goods upon a credit, and guaranteed the fulfilment of N.'s agreements with the plaintiffs according to his contracts. A contract was thereupon entered into by which the plaintiffs agreed to furnish N. certain goods, to be paid for by him from time to time, but with a provision that the goods should be owned by the plaintiffs until they were paid for. Held, that this was a conditional sale upon credit, and within the fair scope of the guaranty.

The contract provided that N. might pay for the goods in certain kinds of barter, and at the expiration of the year return the goods on hand at a certain discount; and that his indebtedness under a former contract, for which the defendant was liable under a previous guaranty, was first to be paid. Held, that these stipulations, not operating to the injury of the defendant, did not prevent or discharge his liability; nor would it be affected by a want of notice of N.'s right to return the goods.

The plaintiffs, after the default of N., attached and sold his goods, including those which they had sold him, and applied the avails in part satisfaction of their claim; and they received from N. his note payable on demand, secured by mortgage, as collateral, and not to be credited until paid, and upon which nothing had been paid; and they had also purchased, in the name of a third person, a prior mortgage upon the same premises, and caused it to be foreclosed, but the time for its redemption had not expired. Held, that neither of these acts discharged or affected the liability of the defendant as guarantor.

ASSUMPSIT upon two guaranties. The cause was, by the agreement of the parties, referred; and the referee reported a balance in favor of the plaintiffs of $1,005.77, including interest, together with the following facts found and decisions made by him.

The claims of the plaintiffs were founded upon two guaranties signed by the defendant, dated May 16, 1851, and June 17, 1852, and were for merchandise furnished T. W. R. Nichols, upon contracts signed by the plaintiffs and T. W. R. Nichols. The guaranties and contracts were as follows.

Noyes & Co. v. Nichols.

"Burlington, May 16, 1851.

"Messrs. M. Noyes & Co.: Gentlemen,—If you will furnish T. W. R. Nichols with merchandise and tin-ware, upon commission or otherwise, I will be accountable to you for all his contracts or engagements, as you and he may agree, and in case he does not fulfil them as agreed, I will guarantee the payment thereof.

"IRA J. NICHOLS." "Contract made and concluded, by and between Morillo Noyes & Co., of Burlington, Vt., on the first part, and Timothy W. R. Nichols, of Essex, Vt., of the second part.

"The party of the first part covenant and agree to furnish, from time to time, a good stock of merchandise and tin-ware.

"The party of the second part covenants and agrees to and with the party of the first part to buy from the said first party all the merchandise and tin-ware the said second party may want, for the term of one year from the date hereof, at cash prices with interest from the date of the bills payable along, from time to time, as the said second party may collect his dues and obtain money; the indebtedness at no time to exceed twelve hundred dollars, except by special consent of said first party.

"And at the expiration of one year, the said first party agree, (if said second party so desire,) to receive back all articles, not damaged, which the said first party may have delivered, by the said second party making a discount therefrom of 10 per cent.

"If the said second party chooses to pay in any barter (such as the said first party are in the custom of receiving) the same is to be placed to the said second party's credit at its cash value.

"It is understood that the said Nichols is to continue in business for one year, and do all that he can advantageously.

"Burlington, Chittenden County, State of Vt., this 19th day of May, 1851. "M. NOYES & Co., "TIMOTHY W. R. NICHOLS."

"June 17th, 1852.

"Messrs. M. Noyes & Co., Burlington: Gents, -T. W. R. Nichols being desirous of obtaining, from time to time, goods upon a credit, now I hereby guarantee to you the faithful and complete

Noyes & Co. v. Nichols.

performance and fulfilment of said Nichols' agreements with you, according to his contracts; and I hereby waive all notice of your acceptance of, and your action under this guaranty.

"IRA J. NICHOLS." "Contract made and concluded this 18th day of June A. D. 1852, by and between M. Noyes & Co., of Burlington, of the first part, and T. W. R. Nichols, of Essex, of the second part.

WITNESSETH;

"That the party of the first part, promise and agree to furnish a good assortment of goods, wares and merchandise, from time to time.

"The said second party, promises and agrees to purchase from said first party during the term of one year, all the goods, wares and merchandise the said second party may want, which is in said first party's assortment, at cash prices with interest from the dates of the respective bills; and payable from time to time as promptly as payments can be made, said second party promising and agreeing to use his best endeavors to get ready pay, and collect all debts as soon as may be. Said first party can limit the amount of the second party's indebtedness, and, it is hereby expressly agreed and understood that said first party shall own, till paid for, all goods, wares and merchandise delivered upon this contract as absolutely as if in their own possession.

At the expiration of one year, the said second party has the privilege of returning unto the first party, whatever goods, wares and merchandise there may be remaining, delivered under this contract, if not soiled or in any ways damaged, by the deduction of 10 per cent being made thereon.

"The second party can pay in barter, such as the first party is in the habit of buying, at any time, by making the same at cash prices.

"The said second party shall at all times keep up, in some good responsible company, a fair reasonable insurance upon the goods, wares and merchandise, for the benefit of the first party; and shall continue said business efficiently and perseveringly for the term of one year, disposing of all the goods, &c., that the said second party can advantageously.