The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-12-20
OPINION OF THE COURT BY FREAR, CD.

OPINION THE COURT FREAR,
This tried by the jury waived, agreed
facts Judgment rendered for the plaintiff The defendant
brings it here exceptions.
The balance $64oos due goods sold and
delivered by plaintiffs Mrs Turner in reliance upon
the following letter written by the defendant
Honolulu H. L. November Is 1897. Mr. NJ. Schweitzer
San Francisco Cal Dear r-This will introduce to YOU
mine Mrs c. A. Turner, the wife of the Collector
of the Port of Ho Island of Hawaii Mrs Turner
Is leaving for your city intending purchase stock of fancy
goods and line of millinery including vengs, ribbons
SETS corset-was underwear, etc Treat her we'll would
also kindly ask YOU take my friend r. L. Topitz
other good millinery house and introduce her there Let Mrs
Turner $4,000 $4,000 worth of goods and
for payment. remain, respectfully yours, Chas J
Fishel.'
The first question whether promise contained
this letter. original collateral undertaking. The
plaintiffs and the trial held that it original
In our opinion The defendant Is liable if
ALL guarantor only and surety guarantor and
surety they both bound for another They
differ obligation of the former Is secondary, while
that Of the primary grrantor undertakes pay if
by due diligence the debt be collected Of the principal
while surety bound equally and absolutely with the prn-
cpal and debtor from the beginning y guaranor
titled of his principals default while surety Is held
to every default Of his principal euantor usually
his before after his principal and for
separate considerations while surety usually becomes bound
with the principal by the instrument the time and
the consideration. Brandt, Surevshp and Guaranty
Am Eng Encycl l. 2nd Ed 1870. In this
Mrs Turner the who intending purchase The
plaintiffs her we'll" They let her select
goods" clear that she be the purchaser
and that the object of induce the plaintiffs
give credit her The plaintiffs understood the letter them
selves when they acted that construction
it. they sold goods Mrs Turner charged them
her her payment and afterwards received from
800 account and finally brought this action alleging
failure pay the balance All this appears from their
complaint and the bill of particulars attached TO IT. 1t clear
that there intention the part of either the plaintiffs
defendant that the latter should become liable either
alone or equally with Mrs Turner The was that
should be primarily liable and he <econdariy, That he
be bound only grlrnor by the language OF this letter
and under these circumstances Bixhop Eoto" 16 Mas,
1876: Lrpqfon r. Richardxon Ia Go: smith Uogon"-
r,y 3 Tex 1919; R0Je1tSo HrHfr. s +. Is. c. so:
TIaH Uoodn Mich. 81; wilkins T. CHrtcr Bros. Co.,
81 Tex 43S: BngJcc r. KndJichcu 100 Mas, 437.
The question Is whether notice of the acceptance Of the
guaranty necessary in order bind the defendant There
evidence that any such notice given The evidence
merely that demand of payment made on the defendant
before commencement the action. The good, sold
in February and April 1895 and the action begun Juno
% 1899 The court having held that the promise
original held also that notice necessary prior Il" the
bringing action. In opinion the defendant. in order
lie bound uarantor should have received reasonable notice
acceptance the guaranty The rule Is tins stated v
the Supreme of the United in DariS Nr"g
UacEjnc Co. o. Richords l15 I, :, 524:
a contract guaranty, like every other contract, only
c made 10y the mutual of the parties If the guaranty
signed by the euarto the request of the other party
4