
    Jonathan Williams against Gideon Granger.
    June, 1810.
    
      Jl. gave a pro-missoiy note to B. dated í!ém6er°^i805" payable to him Ocíofe-, 1806j yember, 1805, for the purpose of seeu-of^the^note1 entered into a written contract with B. thereon*1 in and hy which he, for value received, gua-then^wasTand would continue to be, until the note 8ue"ldofe<suffi^ cient respon-sibihty to pay the same; and ⅛™ danse! ther11*1 engage with S. the promisee,that if the moneys Sfd noted»ve not paid by tember, isor, day'11 advance him l° ánd holding the note as my own, at ray sole risk.” A* having failed to pay the note either on the day of payment, or on the 5th of Septembers 1807, it was held that C.'s promise to pay the money became absolute, and that B. might recover the same of C. without a previous suit on the note against ⅝ or showing his bankruptcy, and without notice to Ó. of A,*s failure.
    WRIT of error.
    This was an action of assumpsit against Granger on a sPec‘a* endorsement, guarantying the payment of Oliver L. Phelps's promissory note, dated November 1, 1805» and payable to Williams on the 1st October, 1806, The was in these words : “For yalue received, j hereby guaranty to Jonathan Williams, Esq. that the . , . within named Oliver X. Phelfis> the promisor, is, and continue to be, until the day of payment mentioned in said note, of sufficient responsibility to pay the same ; . r. j r and I further engage with said Williams, the promisee, ^ *-he moneys mentioned in said note are not paid by the 5th day of September, in the year ISO?, I will on that day advance the same to him, taking and holding the note as my owrb at my sole risk. Hartford, November 14 1805. (Signed) “ Gideon Granger." & J 5
    
    . The declaration averred that Phelps had not paid, and that the defendant was liable, Sec.
    The defendant pleaded that Phelps, when the note was ■ made, endorsed, and became payable, and until the date ⅛6 writ, was a man of abundant property; that the note was K‘veu f°r Phelps's own proper debt, and the dee fendant was surety without funds; and that the defend- . . ' . ant, at no time prior to the date of the writ, had notice of Fheítls>l¡ failure to pay, nor was any demand made of the defendant, nor any suit brought against Phelps.
    
    lo this plea there was a demurrer. The superior court adjudged the plea sufficient; whereupon the plaintiff brought this writ of error, assigning the general error.
    
      
      Goodrich and Dwight, for the plaintiff,
    contended, 1. That it was not incumbent on the plaintiff to sue Phelfis in order to secure the endorsor; because the contract . , , , „ , , „ , with the defendant was not to take effect until the note should have been due more than eleven months.
    2. That it was not incumbent on the plaintiff to give the defendant notice of Phelps's failure to pay. 5 Com. Dig. 367, 368. (Dub. edit.') 16 Vin. Abr. 6. 3 Com. Dig. 119. Selby v. Wilkinson, 2 Bulstr. 254. Holmes v. Twist, Hob. 51. Henning's Case, Cro. Jac. 432. Somer-sall v. Barneby,id. 287. Powle v. Hagger, id. 492. Cole's Case, Cro. Eliz. 97. Juxon v. Thornhill, Cro. Car. 132. Atkinson and Rolfe's Case, l Leon. 1C5. Pitman v. Bidle-combe, 4 Mod. 230. Smith v. -, 11 Mod. 48. Smith v. Goffe, 2 Salk. 457. Harris v. Ferrand, Hardr. 36. East v. Thoroughgood, Cro. Eliz. 834. Brookbank v. Taylor, Cro. Jac. 685.
    3. That if the promise be collateral, to pay the debt of a third person on request, the request must be specially laid. Birks v. Trippett, 1 Saund. 28.
    
      Daggett, contra.
    1. It was the duty of the plaintiff to endeavour to collect this money from the maker. If the defendant had meant to be answerable as a co-obli-gor, he would have signed as such. By endorsing, he virtually said he would be liable only as an endorsor. He is therefore entitled to all the privileges of that character. Nicholson v. Gouthit, 2 H. Bl. 612. recognised by the supreme court of New-York, in Jackson v. Ri-ckards, 2 Gained Rep. 345.
    2. There can be no recovery against the defendant without notice of non-payment by Phelps. The principle may be admitted, that where the fact in question is equally within the knowledge of both parties, notice is not necessary; but this case does not come within that principle. The plaintiff must have had a perfect knowledge whether Phelps had paid or not; but the defends ant did not necessarily know this; he could find it gut only by inquiry; and it does not appear from the record had, ⅛ fact, any knowledge on the subject. On a review of the authorities cited by the counsel for the plaintiff, and a particular examination of each case, it will appear, that wherever notice has been dispensed with, the fact was as much within the knowledge of the plaintiff as of the defendant, except in Brookbank v, Taylor ; and that is a solitary case, unsupported by any other.
    Further, if the defendant is liable at all, he is liable as endorsar; and in that character he is clearly entitled to notice. So far as there is any difference between an endorsement in common form and this endorsement, the difference is against the plaintiff.
   Trumbull, J.

It is apparent from the pleadings and record of the process, that the court below considered this endorsement of Granger as an endorsement in common form, warranting that the note in question was due and collectable by using due diligence ; in which case, it would have been the duty of Williams to have shown to the court, that he had used all due diligence in en-deavouring by law to collect the sums due by said note, from Phelfis, and on failure to have given immediate notice to Granger, to enable himself to maintain an action on such endorsement.

But the endorsement in this case is a new, separate, and independent contract between Granger and Williams relative to the note, though it begins with a warranty of the responsibility of Phelfis.

Phelfis had executed a note to Williams, promising to pay to him one thousand and fifty dollars and thirty cents, with interest, on the first day of October, A. D. 1806. This note was executed on the first day of November, A. D. 1805. On the 14th day of said November, for the purpose of securing the payment of said note, Granger enters into a written contract endorsed thereon, in and by which he, for value received, warrants the ability of Phelps to pay the note, and that he shall eon-tinue to be of sufficient responsibility until the day of . . . payment mentioned therein, and then adds this clause: “ A.nd I further engage with said Williams, the promisee, that if the moneys mentioned in said note are not paid by the 5th day of September, in the year 1807, I will onr that day advance the same to him, taking and holding the note as my own, at my sole risk.”

Phelps wholly failed to pay the note either on the day of payment mentioned in it, or on said 5th day of Sep-tember1807, which was eleven months after it; nor had he ever paid said moneys or any part of them. Williams, on that failure, brought his action against Granger on his contract. Granger pleads that Williams never commenced any suit against Phelps; that Phelps was, and continued till the date of the plaintiff’s writ to be, a man of abundant property; and that Williams never, prior to the date of his writ, gave notice that Phelps had failed to make payment on the note, or made any demand of payment on him, on account of said failure.

On demurrer to this plea the court below adjudged it sufficient, and that Granger should ^recover his casts. To obtain a reversal of that judgment, Williams brings his writ of error before this court.

This is not the case of a mere endorsement, but arises on the special contract executed by Granger to Williams. He wanted better security. Granger, for value received, undertakes to guaranty, and also to pay, the note on said 5th day of September, in case Phelps should fail to pay it by that day. The object appears to have been to obtain for Phelps a further forbearance of eleven months. No act was required on the part of Williams for obtaining the money of Phelps. He was merely bound to receive it, if offered. On failure of payment, Granger’s contract became absolute on that day. But Phelps is allowed time till the same day to pay it, and save Granger from his liability. No special notice was necessary on that day in order to render Granger liable; for his engagement became immediately absolute on the failure of Phelps. Williams had indeed his election to prosecute an actjon against Phelps, or rely on Granger’s contract; but had he immediately, after the note fell due, sued Phelps, obtained judgment against him, and failed of procuring payment on his execution, he would have put it out of his power to assign and deliver over the note to Granger on said 5th day of September.

When Granger’s promise to pay the money to Wil-Hams had become absolute, no special demand previous to the commencement of a suit was by law necessary, any more than in the case of a common promissory note.

Many authorities in some degree analogous, were cited on each side at the bar, but the discussion of them is unnecessary. The cause depends wholly on the true construction of the special contract between Williams and Granger.

For these reasons, I am of opinion that the judgment below was erroneous, and must be reversed.

In this opinion t£e other judges severally concurred.

Judgment reversed.  