
    Henry M. Prentiss et al. vs. Daniel W. Garland et al.
    
    
      Guarantor liable without suit against principal.
    
    A guarantor, upon failure to perform his contract by the person whose action he guarantees, is liable to a suit by the holder of the guaranty, without any previous judgment or suit against the defaulting contractor. r
    
    On motion eor new trial.
    Assumpsit upon the following agreement. No action has been commenced by the plaintiffs against Eben Thissell on the contract therein mentioned, which is also below stated.
    A demand upon the defendants and upon Eben Thissell for payment, was duly made before this action was brought. The only question presented to the court for decision was whether or not this suit can be maintained by the plaintiffs against the defendants without any previous action brought by the plaintiff’s against Eben Thissell. It is admitted that this question was not raised at the trial of the ease.
    The writings referred to were these:
    “Bangor, June 14, 1872.
    Prentiss Brothers hereby agree with Eben Thissell to drive his logs from the head of 2d Lake, taking them as he left them about a week ago, to the Penobscot boom, and to drive all above, for which said Thissell agrees to pay them one dollar twenty-five cents per thousand feet stumpage, scale as soon as the logs arrive at the Penobscot boom; said Thissell also agrees to pay them two dollars a thousand feet for driving the twenty-seven thousand feet, E. Clements’ scale, landed on Telos Lake, to the Penobscot boom, mark jet, mark of other logs mentioned above, tet jet.
    Prentiss Brothers.
    Eben Thissell.
    We hereby agree that the said'Eben Thissell shall make the payment as per the.above contract, promptly, when the logs are driven as above specified, to the Penobscot boom.
    D. W. Garland & Co.”
    
      Wilson <& Woodard for the plaintiffs.
    IF. H. McOrillis for the defendants.
   Appleton, C. J.

The plaintiffs on the fourteenth day of June, 1872, entered into a contract with Eben Thissell to drive his logs at specified prices.

The defendants at the same time signed the following agreement: “We hereby agree that said Eben Thissell shall make the payment as per the above contract, promptly, when the logs are driven as above specified, to the Penobscot boom.

D. W. Garland & Co.”

The objection taken is that no suit has been brought against Thissell for the amount due, and that therefore this action cannot be maintained. The logs arrived at their destination. The principal, Thissell, was called upon to make payment but neglected. The defendants agreed that he should make payment according to the terms of the contract and “promptly.” It has not been done. The agreement of the defendants, has not been performed. It was for the defendants to see that it was performed. Not having kept their promise, they must be held liable for its non-performance.

The bringing a suit against Thissell is not made a condition precedent to the enforcement of the defendants’ liability.

Motion overruled.

Dickerson, Daneorth, Peters and Libbey, JJ., concurred.  