
    Samuel S. Curtis & another vs. Jane Hubbard.
    A. subscribed this instrument: " I guaranty the payment of all sums which B. may owe C. for goods which he may sell B., provided that the whole amount, which B. shall owe C. at any one time, shall not exceed $ 1100 ; it being the understanding that I am, in no event, to be liable for more than that sum: And if B. shall fail punctually to pay said C. any sum which may become due to him, I am to have 90 days, after demand in writing is made on me under this guaranty, to pay the ampunt for which he may be so in default: And this guaranty is vpon the condition that said C. shall, once in every eight months, from the date hereof, give me notice, in writing, of said B.’s account with him.” A. afterwards signed another instrument m these terms i “ Whereas C. has, at my request, consented to sell goods to B. on six months’ credit, I guaranty to him the payment of $ 900, in addition to my obligation to him of $1100; it being the understanding that I am, in no event, to be liable for more than $ 2000 in all; upon the same conditions as expressed in my former obligation.”
    Held, that the proviso in the first instrument, that the sum which B. should owe C. at any one time, should not exceed % 1100, was not a condition upon the breach of which A.’s obligation was defeated; but only a limitation of A.?s liability to C.; and that if it were such a condition, yet that it was waived by the second instrument.
    
      Held also, that in an action by C. against A. to recover the price of goods sold to B. on credit, after Ine making of said second instrument, it was not sufficient to aver in the declaration, (after making all other necessary allegations,) that more than 90 days before action brought, C. gave notice to A.11 of said B.’s indebtedness” in a certain sum, and then made a written demand on A. for payment of said sum $ that said last averment was not equivalent to an averment that, at the time of such notice to A., such sum was due and payable, or that B. was in default 5 and that the declaration was therefore bad, on general demurrer.
    The plaintiffs’ declaration, in this case, was thus : “For that the said Jane, at Boston, on the 13th day of July 1839, in consideration that the plaintiffs had, at her request, consented to sell goods to one William Hubbard, on a credit of six months, and of one dollar to her paid by the plaintiffs, made and delivered to the plaintiffs her obligation or promise in writing, of that date, in the words and figures following, to wit: ‘ Boston, July 13th 1839. Whereas Messrs. Curtis & Merriam have, at my request, consented to sell goods to my son William Hubbard, on a credit of six months; now, in consideration thereof, and of one dollar to me paid by them, I guaranty the payment of the amount of a bill of merchandize, purchased of them by said William, under date of the 10th of July instant, and of all further sums which he may owe them for goods which they may sell him as aforesaid, provided that the whole amount, which he shall owe them at any one time, shall not exceed eleven hundred dollars; it being the understanding that I am, in no event, to be liable for more than that sum: And in case said William shall fail punctually to pay said Curtis & Merriam any sum which may become due to them, I am to have ninety days, after demand in writing is made on me under this guaranty, to pay the amount for which he may be so in default, with interest: And this guaranty is upon the condition that said Curtis & Merriam shall, once in every eight months from the date hereof, give me notice, in writing, of the state of said William’s account with them; and further, that I shall, not be liable for any goods which may be purchased after I shall give notice, in writing, that this guaranty is to cease. • Jane Hubbard.’
    “ And afterwards, at said Boston, on the 28th of October in said year 1839, in consideration that the plaintifis had, at her request, consented to sell goods to said Wm. Hubbard, on a credit of six months, and of one dollar to her paid by the plaintiffs, said Jane made and delivered to the plaintiffs her further obligation or promise in writing, in the words and figures following, to wit: ‘Boston, October 28th 1839. Whereas Messrs. Curtis & Merriam have, at my request, consented to sell goods to ir.y son William Hubbard, on a credit of six months; now, m consideration thereof, and of one dollar to me paid by them, I guaranty to them the payment of nine hundred dollars, in addition to my obligation to them of eleven hundred dollars, dated July 13th 1839'; it being the understanding that I am, in no event, to be liable for more than two thousand dollars in all, upon the same conditions as expressed in my obligation of July 13th 1839. Jane Hubbard.’
    “And the plaintiffs, in reliance upon said guaranties and promises of said Jane, did sell and deliver sundry goods and merchandize to said William Hubbard, on said credit of six months, from time to time, said Jane not having notified them in writing that her said guaranties should cease; and did give said Jane notice in writing, once in every eight months, of the state of said William’s account with them, in compliance with the terms of said guaranties. And the plaintiffs say that said William hath' not paid to the plaintiffs all such sums as have become due from him to them, but, on the cr ntrary thereof, was indebted to them, for goods sold and delivered to him by the plaintiffs, in or exceeding two thousand dollars, to wit, the sum of twenty six hundred and seventy six dollars and ninety one cents, on the 12th day of October 1840, whereof said Jane had notice, and said William still remains so indebted, though payment hath been duly demanded of him. And the plaintiffs further aver that, more than ninety days since, to wit, on the 17th day of October 1840, they notified said Jane of said William’s said indebtedness to them in a sum exceeding said $ 2000, to wit, the said sum of $2676-91, and then made a demand in Writing upon her for payment of said sum of $2000, under and in compliance with her said guaranties and promises. Yet she hath not paid the same, nor any part thereof, nor the interest thereon.”
    General demurrer to the declarador, and joinder
    
      
      W. J. Hubbard, in support of the demurrer.
    The first guaranty was on a proviso, which amounted to a condition, that William Hubbard should not owe the plaintiffs more than $ 1100 at one time; and the defendant insists that William was not to be trusted by them beyond that amount, and that, by breach of this condition, she is exonerated. It may be argued that the words ‘ the whole amount he shall owe them at any one time shall not exceed $1100,’ and the words £I am m no event to be liable for more than that sum,’ are to be taken together, and that they mean one thing. But every part of a contract is to have operation, if possible. Shep. Touch. 87. 1 P. W. 457. The latter clause was not surplusage, re cause the defendant might have been liable, after paying $ 1100, for a further sum, on the continuance of the guaranty, if she had not given written notice that it should cease.
    Does the second guaranty extend the defendant’s liability l This was ‘ upon the same conditions as expressed in ’ the first. The only change made, as to the terms of the defendant’s engagement, was in the amount for which she became responsible, viz. $2000 instead of $1100 only. But it was, in every thing else, £ on the same conditions ’; and one of the conditions of course was, that William should not owe the plaintiffs more than $2000 at any one time.
    But if these provisions did not amount to conditions, by breach of which the defendant is discharged, yet the plaintiffs have not set forth enough in their declaration to charge her. A declaration must allege all that is necessary to support the action, and proof beyond the allegations cannot be received. And where actual notice to the defendant is the condition of his liability, such notice is of the gist of the action, and must be specially averred. Gould PI. c. 4, §§ 7, 15. Notice of demand on William and of non-payment by him, should have been given to the defendant, in order to charge her, and such notice is not averred. It is only averred that notice was given to her that William was indebted to the plaintiffs in the sum of $2876-91 Douglass v. Reynolds, 7 Pet. 127, and 12 Pet. 504. Oxford Dank v. Haynes, 8 Pick. 423.
    
      
      Gardiner & English, for the plaintiffs.
    The proviso in the first guaranty cannot have the effect of a condition. It is to be construed with reference to the intent of the parties. Mussey v. Rayner, 22 Pick. 228. Bent v. Hartshorn, 1 Met. 25. And so construed, it is not a condition. Crocker v. Whitney, 10 Mass. 316. Sturges v. Bobbins, 7 Mass. 301. Gass v. Stin-son, 2 Sumner, 453. The true construction of this contract is, that the defendant would be answerable for $1100, and no more; and that if the plaintiffs trusted William for a larger amount, it should be at their own risk. When the defendant intended to make a condition, she used the proper term. Thus the guaranty is “ upon condition ” that the plaintiffs give notice of the state of William’s accounts with them, &c.
    If, however, this was a condition, it was waived by the second guaranty, which was an extension of the first, on a valuable consideration. Bailey v. Johnson, 9 Cow. 115. Shaw v. Turnpike Co. 2 Pennsyl. 454. Wyer v. Merrill, and- Gage v. Coombs, 7 Greenl. 342, 394.
    Is there “ sufficient matter substantially alleged to entitle the plaintiffs to their action ” ? If so, “ the declaration is good on a general demurrer.” Hole v. Weeks, 4 Mass. 452. It is objected, that it is not averred that the plaintiffs gave the defendant notice of a demand on William, and non-payment by him. Giving to the defendant the state of William’s accounts with the plaintiffs, was tantamount to such notice. But want of notice, in such cases, seems to be matter of defence, on proving damage caused by such want. Babcock v. Bryant, and Salisbury v. Hale, 12 Pick. 133, 416. Lent v. Padelford, 10 Mass. 238. Williams v. Granger, 4 Day, 444. Oxford Bank v. Haynes, 8 Pick. 423. Talbot v. Gay, 18 Pick. 534. Hole v. Young, 24 Pick. 250. The defendant, by the terms of her guaranty, was bound to pay, if William should “ fail punctually to pay,” and was therefore not entitled to notice of a demand on William, because no demand on him was necessary to charge her. She did not engage conditionally, that is, if demand should be made on William, and notice of such demand be given to her. Murray v. King, 5 Barn. & Aid. 165. The strict rules, as to demand and notice, which are applied to indorsers of bills and notes, do not apply to guarantors. Where the matter to be notified lies in the defendant’s cognizance as well as the plaintiff’s, notice is not necessary. Com. Dig. Pleader, C. 75. And this rule applies as well to omissions as to acts. 1 Rol. Ab. 462, 463. Cobb v. Little, 2 Greenl. 261. Lent\. Padelford, ubi sup. Allen v. Rightmere, 20 Johns. 365. Du-val v. Traslc, 12 Mass. 154. In the case of Douglass v. Reynolds, 7 Pet. 116, the declaration did not aver demand and notice; and in 12 Pet. 501, it appears that it was matter of defence. The English law is the same. Warrington v. Furbor, 8 East, 246, per Lawrence, J. Holbrow v. Wilkins, 1 Barn. & Cres. 10. Van Wart v. Woolley, 3 Barn. & Cres. 439.
    
      Hubbard, in reply.
    In Sturges v. Robbins, the claim was on the original sale upon 12 months’ credit. But where a guaranty is for an uncertain sum, at an uncertain time, notice must be given of a default, after demand on the original debtor. Bab-cock v. Bryant did not raise the question on the declaration, and in Douglass v. Reynolds, 7 Pet. 116, the declaration is not given in full, so that it cannot be affirmed that it did not con tain an averment of demand and notice. In William v. Gran-ger, and in Salisbury v. Hale, the defendant guarantied payment at a day certain; so that both parties had the same means of knowledge.
    The giving of the state of the plaintiffs’ accounts to the defendant was not tantamount to notice. It could, at the most, only inform her that there was due from William a certain sum; not that it was payable. Notice that William owed them was not notice that he was “ in default.”
   Shaw, C. J.

1. On the first point, the court are of opinion, that the proviso, in the first instrument of guaranty, that the amount the son shall owe the plaintiffs, at any one time, shall not exceed $1100, is not a condition subsequent, upon the breach of which the obligation of the defendant was annulled and defeated. In construing an instrument of guaranty, as in the case of any other written instrument, the intent of the parties is to govern, as collected from the whole instrument and the subject matter to which it applies. The word “ provided,” may or may not make a condition, according to the context. The manner in which the word is used in this case, and the connection in which it was introduced, show that it was intended rather as an exception or limitation, than as a condition. The first stipulation of the defendant was, in form, a promise to guaranty payment of all her son should owe the plaintiffs. Then comes the proviso, manifestly to limit the generality of this undertaking, which would otherwise be a guaranty for an unlimited amount. Then we think the subsequent sentence was introduced for greater caution, to explain what was intended by the former; it being understood that in no event she should be liable for more than that sum. When it was intended to introduce a condition, which should defeat the contract, it was done in due form and in express terms.

2. But if the proviso in the first contract did constitute a condition, so that if the plaintiffs should give the son credit to a larger amount than $ 1100, the obligation would be void; the court are of opinion that it was waived by the second, by which the defendant undertook to guaranty the payment of her son’s debt to the plaintiffs, to the amount of $2000. This was without any such condition. It is argued that this is expressed to be upon the same conditions as the former, including the proviso. This clause manifestly applies to the express conditions, such as furnishing an account once in eight months, demand, and three months’ notice, and the like. If it meant to adopt the proviso in the former, as a condition, it would be that they should not credit the son above $ 1100, which would be absurd in a guaranty for $2000. We are then called upon to say, that the parties intended a similar or corresponding condition, extending it to the $2000. But such a condition is not expressed, and there is nothing in the context or the subject matter, from which the court can imply it. It rather tends to show the understanding of the parties, that the word “ provided,” in the first instrument, was intended to limit the amount of the guaranty; and that limitation being sufficiently expressed in other terms, in the second instrument, a similar proviso was unnecessary.

3. But the court are of opinion that, in one particular, the declaration is defective in substance, and therefore bad on general demurrer. The undertaking of the defendant was, to pay, in case said William should fail punctually to pay, the plaintiffs any sum which should become due to them, she to have ninety days, after demand made on her in writing, to pay the same. The averment in the declaration is, that they made known to the defendant, more than ninety days before the commencement of the action, the said William’s indebtedness to them, in a sum exceeding @2000, and made demand in writing, &c. It is not averred, that at the time of said notice, the said sum of @2676 was due and payable, or that they gave her notice that it was due and payable. The sale was to be on a credit, and there would be a debt, debitum in prasenti, from the time of the sale; but the liability of the guarantor did not accrue until the expiration of the credit, and the failure of the principal to pay the debt punctually The averment, therefore, in the declaration, that they notified the defendant that the son was indebted to them, is not equivalent to the averment cf a notice that so much had become due and payable. The aver-ments may all be true, and yet do not show a case in which the defendant, by the terms of her guaranty, was liable. The averment of having rendered an account once in eight months, according to the terms of the contract, is not equivalent to a notice that the debt had become due and payable ; because much of the debt may have arisen after the next antecedent account had been rendered; of which, therefore, she might have had no notice from the account.

It is said that the fact was, that notice was given to the defendant that @2000 and more had become due from her son, and was payable ; and that it was by a slight inadvertence in drawing the declaration, that the averment was omitted. If it be so, the plaintiffs will have leave to amend, on proper terms. 
      
      
        Hubbard, J. did not sit in this case.
     