contract, notice shall be given with due diligence, so that the promisor may know that a contract has been made. But where the promise is in consideration of an act to be done, it becomes binding upon the doing of the act, so far that the promisee cannot be affected by a subsequent withdrawal of it, if, within a reasonable time afterwards, he notifies the promisor. In accordance with these principles it has been held in cases like the present, when the guarantor would not know of himself from the nature of the transaction, whether the offer has been accepted or not, that he is not bound without notice of the acceptance, seasonably given after the performance which constitutes the consideration." These principles are in harmony with those announced in the principal case, excepting that notice is held requisite when the act of acceptance is “of such a kind that knowledge of it will not quickly come to the promisor." But it is a difficult and not altogether profitable task to attempt to distinguish cases and reconcile decisions upon this question: "The rights and duties of parties to guaranties must, from the variety of circumstances under which they have been entered into, be materially governed by the particular circumstances of each case:" 2 Am. L. C. 87. The distinguishing feature of the guaranty in the principal case was, that it purported to be a present, absolute undertaking, in which the liability was limited and made certain as to duration and amount; no consideration, however, was mentioned or suggested therein. In the following cases the guaranty was held to be complete, and notice not necessary: Davis v. Wells, supra ; Johnson v. Bailey, 15 S. W. (Texas) 499; Klosterman v. Olcott, 41 N. W. (Neb.) 250; Taylor v. Tolman Co., 47 Ill. App. 264; Nading v. McGregor, 23 N. E. (Ind.) 283; Currie Fertilizer Co. v. Byfield, 34 N. E. (Ind.) 451; Hall v. Weaver, 34 Fed. 104; Doud v. Nat. Park Bank, 54 Fed. 846. Where the contract guarantied or agreement to accept is contemporaneous with the guaranty, notice is not necessary: Wildes v. Savage, 1 Story, 22; Bechtold v. Lyon, 29 N. E. (Ind.) 912; Wright v. Griffith, 121 Ind. 478; Lemp v. Armen gol, 26 S. W. (Tex.) 941. Nor where there has been a precedent request: Hasselman v. Japanese Co., 27 N. E. (Ind.) 318; contra, Kay v. Allen, 9 Pa. 320. Where the consideratiou for the guaranty moves indirectly toward the guarantor, no notice is necessary: Doud v. Nat. Park Bank, 54 Fed. 846; Nading v. McGregor, 23 N. E. (Ind.) 283. In these cases the rule requiring notice of acceptance to complete the contract of guaranty has been adopted: Davis Sewing Machine Co. v. Richards, supra; Winnebago Paper Mills v. Travis, 58 N. W. (Minn.) 36; Patterson v. Reed, 7 W. & S. 144; Emerson v. Graff, 5 Casey, 358; Kay v. Allen, 9 Pa. 320; Kellogg v. Stockton, 29 Pa. 464; Coe v. Buchler, 110 Pa. 366; Gardner v. Lloyd, 110 Pa. 278; Steadman v. Guthrie, 4 Met. (Ky.) 156; Ruffner v. Love, 33 Ill. App. 60; Newman v. Streator, 19 Ill. App. 594; Rankin v. Childs, 9 Mo. 674; Mussey v. Rayner, 22 Pick. 223; Allen v. Pike,. 3 Cush. 238; Bishop v. Eaton, supra; Wilkins v. Carter, 19 S. W. (Texas) 997; Oaks v. Weller, 13 Vt. 110; Hill v. Calvin, 4 How. (Miss.) 231; Walker v. Forbes, 25 Ala. 139; McCollum v. Cushing, 22 Ark. 540; Bank v. Sloo, 16 La. 539, and see cases cited in Brandt on Suretyship, sec. 186, note 1; and in 9 Am. & Eng. Ency. of Law, p. 78, 79. Notice may be inferred from facts and circumstances: Reynolds v. Douglass, 12 Peters, 497; Raffner v. Love, 33 Ill. App. 601. Knowledge from any source is equivalent to notice: Powell v. Chicago Carpet Co., 22 Ill. App. 409; Tolman Co. v. Means, 52 Mo. App. 385; Mitchell v. Railton, 45 Mo. App. 273; Webster v. Smith. 30 N. E. (Ind.) 139. Notice may be waived: Fisk v. Stone, 50 N. W. (Dakota) 125. Closely allied to the guarantee's duty to give notice of acceptance is the duty to make disclosure of facts affecting the liability of the guarantor and material to the subject-matter of › his contract. This was a second question involved in the case under consideration: Was it the duty of Lachman & Jacobi to have given information to C. Lazard, of Henry Block's defalcation and embezzlement in anticipation of the former becoming the surety or guarantor for the latter's firm?" The court disposed of the question as follows: “It is our deliberate conviction that such embezzlement did not constitute a fact material to the agreement, or transaction of suretyship, or guaranty, and it was not necessary for the guarantees to disclose it, and that their failure to disclose it does not operate the release or discharge of the defendant." A review of the decisions upon this question does not come within the scope of this annotation, as such relates to the discharge of the surety by the fraud of the creditor. De Colyar points out (p. 260) that, under the English authorities, "no concealment will vitiate a guaranty unless it be fraudulent." It was said in Insurance Co. v. Lloyd, 10 Ex. 523, that "the mere relation of principal and surety does not require the voluntary disclosure of all the material facts in all cases. The same rule as to disclosures does not apply in cases of principal and surety as in cases of insurance on ships and lives." Lord CAMPBELL's criterion as to whether a disclosure should be made voluntarily was "whether there is anything that might not naturally be expected to take place between the parties who are concerned in the transaction:" Hamilton v. Watson, 12 C. & F. 109. In Magee v. Manhattan Ins. Co., 92 U. S. 93, Mr. Justice SWAYNE said: "But there is a duty incumbent on him, (the surety). He must not rest supine, close his eyes and fail to seek important information within his reach. If he does this and a loss occurs he cannot, in the absence of fraud on the part of the creditor, set up as a defence, facts then first learned, which he ought to have known and considered before entering into the contract." The decision in this case was similar to the one under discussion. STAYTON, C. J.; in Screwmen's Assn. v. Smith, 7 S. W. (Texas) 793, suggests the difficulty in the surety securing from his principal truthful admissions of moral delinquency as distinguished from matters showing him to be merely negli gent, dilatory or unskillful, though not dishonest. The court thinks that in the one case disclosure should be made, while in the other it need not. See cases cited in 24 Am. & En. Ency. of Law (Suretyship), 793, and Brandt on Suretyship, Sec. 419, et seq. It does seem that in those cases where the opportunity to obtain information exists, the creditor should be entitled to presume that the surety has availed himself of it, and not be required to volunteer the disclosure, especially in view of the fact that the very purpose of a guaranty or suretyship is to provide against possible risk, and the relation between the principal and surety being presumed to be intimate, the latter should be vigilant and guard himself, else he must realize the truth of Solomon's saying: "He that is surety for a stranger shall smart for it; and he that hateth suretyship is sure.” G. HERBERT JENKINS. Philadelphia, April, 1895. [All legal works received before the first of the month will be reviewed in the Issue of the month following. Books should be sent to W. S. Ellis, Esq., 736 Drezel Building, Philadelphia, Pa.) TREATISES, TEXT-BOOKS, ETC. COMMENTARIES ON THE LAW OF INSURANCE. (2 Vols.) By CHARLES FISK BEACH, JR. Boston and New York: Houghton, Mifflin & Co. Riverside Press, Cambridge. 1895. HALF A CENTURY WITH JUDGES AND LAWYERS. By Joseph A. WilLARD. Boston: Houghton, Mifflin & Co. 1895. THE UNITED STATES INTERnal Revenue TAX SYSTEM. Edited by CHARLES WESley Eldridge. Boston and New York: Houghton, Mifflin & Co. Riverside Press, Cambridge. 1895. THE UNITED STATES INCOME TAX LAW SIMPLIFIED FOR BUSINESS MEN. 3d Ed. Enlarged and Revised. By FREDERICK A. WYMAN. 1895. THE INSURANCE AGENT. His Rights, Duties and Liabilities, etc. By 1895. HANDBOOK OF EQUITY JURISPRUDENCE. BY NORMAN FETTER. Hornbook Series. St. Paul, Minn.: West Publishing Co. 1895. 463 pages. COMMENTARIES ON THE LAW OF INJUNCTIONS, as Determined by the Courts and Statutes of England and of the United States. By CHARLES FISK BEACH, Jr., of the New York Bar. Author of "Modern_Equity Jurisprudence," "Modern Equity Practice," &c., &c. In Two Volumes. Albany: H. B. Parsons, Law Publisher. 1895. THE LAW OF MUNICIPAL CORPORATIONS IN THE STATE OF OHIO, embracing the Statutes in force, with Forms and Notes of the Decisions of the Supreme and other Courts of the State relating thereto. By HIRAM D. PECK. Fourth Edition. Cincinnati: The Robert Clarke Co. 1894. SELECTED CASES, ETC. CASES ON CONSTITUTIONAL LAW. Part III. By JAMES BRADLEY DIGEST OF INSURANCE CASES. For Year, Ending Oct. 32, 1894. By NATIONAL CITATIONS. A Compilation showing all Provisions of the United States Revised Statutes. AMERICAN ČITATION CO. St. Louis: Nixon-Jones, Printing Co. 1895. PAMPHLETS. NATIONAL CORPORATIONS. By J. J. H. HAMILTON. Reprinted from University Law Review. REPORT OF THE SECOND ANNUAL MEETING OF THE TERRITORIAL, BAR ASSOCIATION OF UTAH. |