#### Ralph Clark and Enos P. Clark *versus*Jacob Burdett.

The defendant executed and delivered to the plaintiffs a guaranty in the following words: “New-York, 30 th April, 1828.—X hereby guaranty the payment of any “ bill or bills of merchandize, Mrs. P. has purchased, or may purchase of E. P. “ C. & Co. The said Mrs. P. having the privilege of 90 days credit on the “ purchases made by her, the amount of this guaranty, not exceeding 0200, and “ this guaranty to expire at the end of one year from this date.”

Held that this instrument was a continuing guaranty, and applicable to any goods delivered under it, not exceeding the specified amount, during the period limited.

Held also, that a demand of the purchaser, and notice to the defendant, were not necessary as conditions precedent to the plaintiffs’ right of action.

Where there are several debts, some of which are *guarantied,*and some are not, and a payment is made by the debtor, the creditor may apply it as he pleases, unless a special application is made'by the debtor.

Assumpsit upon a guaranty. The declaration contained two special counts upon the instrument, besides the common counts, for goods sold, &c. Pleas, the general issue, and payment.

It appeared at the trial, that one Mrs. Phillips applied to the plaintiffs in the month of April, 1828, to purchase a quantity of dry goods upon credit. The plaintiffs being unwilling to furnish the goods without security, the applicant offered to procure the defendant’s guaranty for the payment of such purchases as she might wish to make. The piaintiffs, therefore, drew up a guaranty, and sent it by their clerk to the defendant, and it was immediately signed by him. The instrument was in these words, viz: “ New-York, 30th April, 1828. I hereby guaranty the payment “ of any bill or bills of merchandize Mrs. Phillips has purchased, “ or may purchase from E. P. Clark & Co.; the said Mrs. Phil- “ lips having the privilege of ninety days credit on the purchases. “ made by her, the amount of this guaranty, not exceeding two “ hundred dollars, and this guaranty to expire at the end of one “ year from this date. Jacob Burdett.”

*198After this paper was received by the plaintiffs, they delivered to Mrs. Phillips, on the 30th of April, 1828, a quantity of goods, amounting to $198.73; on the third day of May following, another parcel, amounting to $35.72, and at several different times after-wards, between that period and the 17th day of the same month, several other parcels, amounting in the whole to $379.60.

On the 20th of June following, Mrs. P. called upon the plaintiffs to take back such goods as she had on hand, so as to reduce the amount of her debt to them as much as possible. The plaintiffs acceded to -this request, and received back from her goods to the amount of $200, and upwards, and were afterwards compelled to bring this action to recover the balance due from her, amounting to $166.41.

For this sum the plaintiffs had a verdict, which was taken, however, subject to the opinion of the court upon a case to be made. If the court should be of opinion that the action could not be sustained, then a non-suit was to be entered.

*Mr. J. L. Mason*for the defendant, now contended,

I. that the plaintiffs should have proved a demand of payment upon Mrs. Phillips, and notice of non-payment to the surety, in order to entitle them to this action. [4 *M. and Sel.*574. *Com. Dig. Surety, H. 2. 3 Wheat.*101-154. (n.) 8 *East.*245.]

II. He also contended that the guaranty was void as to the goods, which *had been*purchased previous to its date, because no consideration for the defendant’s promise appears upon the paper, and being void in fact, it was void *in toto.*[7 *Term R.*201. 14 *J. R.*465.]

III. The guaranty was a limited, and not a continuing one, and the payment made by Mrs. Phillips in goods, (amounting to $200,) must be deemed applicable to *the first*purchase, and for which the defendant gave his guaranty. *[Kirby v. Marlborough, 2 M. and Sel.*18.]

*199*Mr. D. B. Tallmadge, contra*for the plaintiffs, contended,

that that the consideration for the promise was sufficiently apparent on the face of the instrument and proof of the delivery of the goods makes the cause of action complete.

The instrument itself is a continuing guaranty, and covers all goods sold under it, before the time limited therein for its continuance.

As to notice to the purchaser, no case can be found, where either notice or demand has been found necessary; for notice does not create the liability. The rule upon this subject is, that injury from want of notice must be made to appear, before the defendant can avail himself of this defence, unless such notice is *a condition precedent.*[He cited 9 *East.*348. 1 *Holt's*N. P. R. 153. 3 *Moore's R.*15. 6 *Ib.*521. 3 *Brod. & Bing.*211. 1 Bing. *R.*216. *Mason v.*Pritchard, 2 *Camp. R.*436.]

Oakley J.

One Mrs. Phillips applied to the plaintiffs to purchase a quantity of goods. They declined delivering them without security. She offered the guaranty of the defendant, who signed and delivered to the plaintiffs the instrument, which is specially declared upon in this action.

The plaintiffs thereupon delivered to Mrs. P. a bill of goods amounting to $198.73, and at several subsequent periods, sold her other goods, in the whole to the amount of $379.60.

On the 20th of June, 1828, Mrs. P., wishing to give up her business, offered to return to the plaintiffs the goods she had on hand, so as to reduce the amount of her debt as much as possible, and the plaintiffs took them back to the amount of $200, and upwards. This action is brought on the guaranty, to recover the balance due on the account of Mrs. P., being $166.41.

I. The first objection made to the plaintiffs recovery, is, that he has not proved a demand on Mrs. P. for payment, and notice of non payment to the defendant.

I do not understand, that such a demand and notice are necessary to be proved, as conditions precedent to the plaintiffs’ right of action. The guaranty of the defendant is not a conditional, but an original undertaking, collateral to the promise of the ven*200dee of the goods, and the defendant cannot set up as a defence, any negligence of the plaintiffs, in calling upon the vendee for payment, unless, at least, he can show that such negligence has been the cause of injury to him. *[Duval v. Trask, 12*Mass. *R.*156.] In the *People*v. *Jansen,*(7 *J. R.*339.) The Court say, that in the case of a surety, the creditor is not bound to take any steps against the principal debtor, with a view to relieve the security, unless he should be required to enforce payment. In the present case, the omission to demand payment of the vendee of the goods, or to give notice of non-payment to the defendant, does not appear to have prejudiced him in any manner.

It would also be a sufficient answer to this point of the defence, that no objection was made at the trial, that a demand and notice were not proved.

II. It is objected also, that the guaranty is void, for the want of consideration, as to the goods, which had been purchased, and being void in part, is wholly so.

The guaranty applied to the facts, as they existed at the time it was entered into, must be understood, when it speaks of goods, which Mrs. P. *had purchased,*to allude to those, which she had contracted for, but which the plaintiffs would not deliver without security. It appears clearly in evidence, that all the goods sought to be covered by the guaranty were delivered after it was made. It is not necessary, therefore, to examine the correctness of the position assumed by the defendant’s counsel, under this branch of the defence.

III. It is contended, that the guaranty is a limited one, and that the payment of $200, made by Mrs. P., must be applied to satisfy it.

It is quite clear, that this guaranty is a continuing one, and by its ’ express terms intended to secure any sale of goods, during the period of one year, not exceeding the specified amount. The return of a portion of the goods to the plaintiffs, can hardly be considered as a payment, by Mrs. P.; but if it could, it appears to be settled, that when there are several debts, some of which are guarantied, and some not, and a payment is made by the debtor, the creditor may apply it as he pleases, unless a special applica*201tion is made by the debtor. *[Sturges v. Robbins,*7 *Mass. R.*301. *Hutchinson v. Bell,*1 *Taunton,*564. *Kirby v. Duke Marlborough, 2 Mau. & Sel.*18.] Upon the whole case, I think that the plaintiffs are entitled to judgment.

*Judgment for the plaintiffs.*

[E. Curtis, *Atty. for the plffs. J.*L. Mason, *Atty. for the deft.]*