#### THE SALEM MANUFACTURING CO. *v.*JACOB W. BROWER.

Where it is clear that early notice to a guarantor, of the failure to pay of the person whose debt he has guaranteed, could have been of no benefit to him, such early notice is not required, and the want of diligence, in this respect, does not impair the guarantor’s obligation.

This was an action of assumpsit, tried before SauNdeks, J., at the Spring Term, 1857, of Eorsyth Superior Court.

The plaintiff, through its agent C. L. Banner, and the defendant, entered into the following agreement, viz:

“Salem, January 26th, 1844:' An agreement between J. W. Brower of Surry county, North Carolina, and the Salem Manufacturing Company, viz: The Salem Manufacturing Company agrees to deliver to the said Brower, one thousand bunches of yarn, 5 lbs. each, from No. 5 to No. 10, averaging’between No. 7 and No. 8, for the sum of $775, to be paid in good bonds on other persons; if not due, bo, said ’Brower, is to make them due, by paying interest till due, which said bonds, he is to assign over for value received. The following are part of the bonds, viz: One bond on Bobert Anglin, *430due 26th of September, 1844, for $75 — deduct eight months interest, $3,00; one bond on Robert Anglin, due 24th of September, 1845, for $75' — deduct interest for one year and eight months, $7,50.” These and other Jiotes, mentioned in the same list, were .endorsed by the payee, for value received, and delivered to Mr. Banner, the plaintiff’s agent, and the cotton yam was delivered by the latter to the former. In 1849, the agent, Banner, examined the schedule of bonds, set forth in the contract, and all having been collected except the two, now in question, upon Robert Anglin, the names of the defendant and the agent were torn off of the papers, but they were retained by the agent.

Anglin lived in Virginia, and the plaintiff caused suit to bd brought on the said two bonds, in the Circuit Court of Eranldin county, in that State, in the name of the said Brower, and at October term, 1851, of that Court, because of a. breach of warranty in the article, (a smut machine) for which the said bonds were given, and the damages for which, were permitted, by the laws of that State, to be assessed and set off* in the suit then pending, a verdict and judgment were rendered against the plaintiff, to the full amount of said notes ; of which failure to collect, the plaintiff gave the defendant notice in 1852, or in 1853.

The defendant’s counsel relied upon the want of a reasonable notice of the principal’s failure to pay, also on the statute of limitations.

This suit was brought on 27th of January, 1855.

Ilis Honor was of opinion that the plaintiff was entitled to recover, and so instructed the jury. Defendant excepted.

The jury rendered a verdict for the plaintiff, and judgment being entered by the Court, the defendant appealed to this Court.

*Morehead,*for the plaintiff.

*MoLea/n*and Ruffin, for the defendant.

Nash, C. J.

"We concur with his Honor below, that the *431plaintiff is entitled to a judgment for tbe sum awarded Mm by the jury. On -the 26th of January, 1844, the defendant 'purchased from the plaintiff a quantity of cotton yarn, and in part payment transferred to the Company, by endorsement, the bonds in question, given by one Anglin. This was done in pursuance of an agreement, that the cotton was to be paid for in good notes on other persons. Anglin lived in Virginia, and suit was brought against him in the name of the defendant, and judgment was rendered in favor of the defendant on the 13th day of- October, 1851. This action was brought to Spring Term, 1855. Notice was given to the defendant of the failure to recover on the bonds in 1852 or ’53. Before a guarantor can be held liable on his guaranty, he must have notice of the failure of him whose debt he has agreed to pay. If any time is specified in the contract within which notice is to be given, the plaintiff must prove that notice was so given. If no time is specified, then notice must be given in reasonable time. What.is reasonable time is a question of law. It is required to enable the guarantor to save himself. If, however, the notice is delayed for a long time, and it is, nevertheless, clear that the guarantor could have derived no benefit from an earlier notice,- the delay will not impair his obligation to pay. 2 Parsons on Con., 174. *Clark*v. *Reaming*ton, 11 Metcalf 361. Now it is very certain that the defendant Brower could have suffered no loss in not receiving earlier notice of the failure of the suit against Anglin. The suit was in the name of Jacob W. Brower,'and upon the bonds in question; so there is a judgment upon the bonds in favor of Anglin on these very notes, which will forever bar a recovery upon them against Anglin. But if the notice was given either in 1852 or ’53, the statute does not bar, three years not having expired before the commencement of this action.

Pee CueiaM, Judgment affirmed.