it is accepted, and whether the person to whom it is addressed means to give credit on the footing of it or not. It may be most material, not only as to his responsibility, but as to future rights and proceedings. It may regulate, in a great measure, his course of conduct, and his exercise of vigilance in regard to the party in whose favor it is given. Especially, it is important in case of a continuing guarantee, since it may guide his judgment in recalling or suspending it. This last remark by no means warrants the conclusion that notice is not necessary in a guarantee of a single transaction; but only that the reason of the rule applies more forcibly to a continuing guarantee. It is unnecessary, after such clear and decided authorities in this court on this point, to fortify it by additional adjudications. We are not aware of any conflict of decisions on this point; and if there are, we see no reason for departing from a doctrine so long and so fully settled in this court.

We do not mean to lay down any rule with respect to the time within which such notice must be given. The same strictness of proof is not necessary to charge a party upon his guarantee, as would be necessary to support an action upon the bill itself; when, by the law merchant, a demand upon and refusal by the acceptors must be proved in order to charge any other party upon the bill. 8 East, 245. There are many cases where the guarantee is of a specific existing demand by a promissory note or other evidence of a debt; and such guarantee is given upon the note itself, or with a reference to it and recognition of it, when no notice would be necessary. The guarantor, in such cases, knows precisely what he guarantees, and the extent of his responsibility; and any further notice to him would be useless. 14 Johns. 349; 20 Ib. 365. But when the guarantee is prospective, and to attach upon future transactions, and the guarantor uninformed whether his guarantee has been accepted and acted upon or not, the fitness and justice of the rule requiring notice is supported by considerations that are unanswerable.

We are, accordingly, of opinion that the circuit court erred in deciding that notice was not necessary, and that the judgment must be reversed.

DAVIS SEWING MACHINE COMPANY v. RICHARDS.

1885.

115 U. S. 524; 6 Sup. Ct. Rep. 173.

In error to the supreme court of the District of Columbia. GRAY, J. This was an action, brought in the supreme court of the District of Columbia, upon a guaranty of the performance by one John W. Poler of a contract under seal, dated December 17, 1872, between him and the plaintiff corporation, by which it was agreed that all sales of sewing machines which the corporation should make to him should be upon certain terms and conditions, the principal of which were that Poler should use all reasonable efforts to introduce, supply and sell the machines of the corporation, at not less than its regular retail prices, throughout the District of Columbia and the Counties of Prince George and Montgomery, in the State of Maryland, and should pay all indebtedness by account, note, indorsement or otherwise, which should arise from him to the corporation under the contract, and should not engage in the sale of sewing machines of any other manufacture; and that the corporation, during the continuance of the agency, should sell its machines to him at a certain discount, and receive payment therefor in a certain manner; and that either party might terminate the agency at pleasure.

The guaranty was upon the same paper with the above contract, and was as follows:

"For value received, we hereby guarantee to the Davis Sewing Machine Company, of Watertown, New York, the full performance of the foregoing contract on the part of John W. Poler, and the payment by said John W. Poler of all indebtedness, by account, note, indorsement of notes (including renewals and extensions) or otherwise, to the said Davis Sewing Machine Company, for property sold to said John W. Poler, under this contract to the amount of Three Thousand ($3,000) Dollars. "Dated Washington, D. C., this 17th day of December, 1872. "A. ROTHWELL, "A. C. RICHARDS.'

Under the guaranty were these words: "I consider the above sureties entirely responsible. Washington, Dec. 19, 1872. "J. T. STEVENS.'

At the trial the above papers, signed by the parties, were given in evidence by the plaintiff, and there was proof of the following facts: On December 17, 1872, at Washington, the contract was executed by Poler, and the guaranty, after being so signed, were delivered by the defendants to Poler, and by Poler to Stevens, the plaintiff's attorney, and by Stevens afterwards forwarded, with his recommendation of the sureties, to the plaintiff at Watertown in the State of New York, and the contract there executed by the plaintiff. The plaintiff afterwards delivered goods to Poler under the contract, and he did not pay for them. The defendants had no notice of the plaintiff's execution of the contract, or acceptance of the guaranty, and no notice or knowledge that the plaintiff had furnished any goods to Poler under the contract or upon the faith of the guaranty, until January, 1875, when payment therefor was demanded by the plaintiff of the defendants and refused. At the time of the signing of the guaranty, the plaintiff had furnished no goods to Poler, and the negotiations then pending between the plaintiff and Poler related to prospective transactions between them.

The court instructed the jury as follows: "It appearing, at the time the defendants signed the guaranty on the back of the contract between plaintiff and Poler, the plaintiff had not executed the contract or assented thereto, and that the contract and guaranty related to prospective dealings between the plaintiff and Poler, and that subsequently to the signing thereof by the defendants the attorney for the plaintiffs approved the responsibility of the guarantors and sent the contract to Watertown, New York, to the plaintiff, which subsequently signed it, and no notice having been given by the plaintiff to the defendants of the acceptance of such contract and guaranty, and that it intended to furnish goods thereon and hold the defendants responsible, the plaintiff cannot recover, and the jury should find for the defendants."

A verdict was returned for the defendants, and judgment rendered thereon, which on exceptions by the plaintiff was affirmed at the general term, and the plaintiff sued out this writ of error, pending which one of the defendants died and his executor was summoned in.

The decision of this case depends upon the application of the rules of law stated in the opinion in the recent case of Davis

v. Wells, 104 U. S. 159, in which the earlier decisions of this court upon the subject are reviewed.

Those rules may be summed up as follows: A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor at the request of the other party, or if the latter's agreement to accept is contemporaneous with the guaranty or if the receipt from him of a valuable consideration, however small, is acknowledged in the guaranty, the mutual assent is proved, and the delivery of the guaranty to him or for his use complete the contract. But if the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them except future advances to be made to the principal debtor, the guaranty is in legal effect an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract.

The case at bar belongs to the latter class. There is no evidence of any request from the plaintiff corporation to the guarantors or of any consideration moving from it and received or acknowledged by them at the time of their signing the guaranty. The general words at the beginning of a guaranty, "value received," without stating from whom, are quite as consistent with a consideration received by the guarantor from the principal debtor only. The certificate of the sufficiency of the guarantors, written by the plaintiff's attorney under the guaranty, bears date two days later than the guaranty itself. The plaintiff's original contract with the principal debtor was not executed by the plaintiff until after that. The guarantors had no notice that their sufficiency had been approved, or that their guaranty had been accepted, or even that the original contract had been executed or assented to by the plaintiff, until long afterward, when payment was demanded of them for goods supplied by the plaintiff to the principal debtor.

Judgment affirmed.

CHAPTER VI.

CHANGE OF CONTRACT.

c. Any material change in the contract between the principal debtor and his creditor, whether to the disadvantage of the surety or not, will release the latter unless he consents to the change.

HALL v. PEYSER. 1879.

126 Mass. 195.

Contract on the following instrument in writing, dated October 2, 1876, and signed by the defendant; "In consideration of one dollar to me paid by George F. Hall, of Boston, and for the purpose of securing a credit with him for Isidore Patterson, I hereby guarantee the full and punctual payment to George F. Hall of all indebtedness which said Isidore Patterson may incur for purchase of goods, wares and merchandise from said George F. Hall, whether such purchase shall be made on credit or otherwise, or secured by note or otherwise, without requiring notice of any kind with respect thereto. This guaranty to be an open and continuing one until revoked by notice in writing from me; it being understood that her liability thereunder shall not at any one time exceed one thousand dollars. Answer, a general denial.

At the trial in the superior court, before DEWEY, J., without a jury, it was admitted that, on October 10, 1877, there was due to the plaintiff for merchandise previously sold and delivered by him to Patterson, the sum of $53.32. The plaintiff offered evidence that, prior to October 10, the firm of Sayre & North, of New York, had delivered goods at different times to Patterson to be by her manufactured for them and returned to them; that they were to pay her for her services in manufacturing the goods; that she did not return the goods, but disposed of the same for her own use and benefit, and thereafter, about October 10, they requested her to return the goods, at the same time charging her with having wrongfully disposed of them for her own benefit; that she then requested them to make a bill of the goods to the plaintiff; that they did so, and the plaintiff made a bill of the same to Patterson; and that this arrangement was made after the delivery of all the goods to Patterson by Sayre