
    Ajax Rubber Company, Inc., a corporation of the State of Delaware, vs. Emma S. Gam.
    Guaranty—Notice of Acceptance—Necessity.
    In an action to recover future credits under a guaranty, whereby defendant guaranteed payment of purchases of a company from plaintiff, it was necessary to aver that plaintiff gave notice to defendant of acceptance of the guaranty.
    
      (March 25, 1919)
    Boyce and Conrad, J. J., sitting.
    
      Herbert H. Ward, Jr., (of Ward, Gray, and Neary) for plaintiff.
    
      Harry Emmons for defendant.
    Superior Court for New Castle County,
    March Term, 1919.
    Action Covenant, No. 74,
    November Term, 1918.
    Action by the Ajax Rubber Company, Incorporated, against Emma S. Gam. On general demurrer to the declaration. Demurrer sustained. The question of law presented appears in the opinion of the court.
   Conrad, J.,

delivering the opinion:

The plaintiff declared on the following guaranty received from the defendant:

“In consideration of the sum of one dollar and other valuable considerations, the receipt whereof is hereby acknowledged, the undersigned hereby guarantees the prompt payment of all purchases heretofore made, and that may hereafter be made by A. B. Rothacker Rubber Co., Inc., from the Ajax Rubber Company, Inc., up to the amount of $25,000.00, it being understood that this guaranty shall be a continuing guaranty and shall remain valid and cover all purchases, until receipt by the Ajax Rubber Company, Inc., of a written notice from the undersigned that this guaranty is terminated.
“The undersigned hereby further consents to and waives notice of any extension or extensions of payment that may be hereafter granted by the Ajax Rubber Company, Inc., to the said principal debtor by the acceptance of notes or otherwise, of the payment of the indebtedness which is secured by this guaranty.
“Dated March 23, 1917.
“Emma S. Gam. [l. s.]
“Witness: Hannah Mammele."

—and alleged that, in consideration of said agreement, the plaintiff did on sundry dates between the first day of April, A. D. 1917, and the second day of October, A. D. 1917, sell and deliver to A. B. Rothacker Rubber Company, Incorporated, on certain credit then and there agreed upon between them certain goods which it, the said A. B. Rothacker Rubber Company, Incorporated, then and there had occasion for and required of the said Ajax Rubber Company, Incorporated, in the way of trading business, at and for certain reasonable prices then and there agreed upon by and between them amounting to the sum of twenty thousand dollars, which said sum or any part thereof has not been paid, all of which the said Emma S. Gam afterwards, to wit, on the sixth day of October, 1917, then and there had notice, and she, not regarding her said covenants, promises and undertakings, has not yet paid said sum or any part thereof for the said goods or any part thereof.

The declaration contains no averment of notice of the acceptance of the guaranty by the plaintiff. It is necessary that the plaintiff should aver that it gave notice to the defendant that it accepted her guaranty before there can be a recovery against her, in view of the fact that the action is for the recovery of future credits under the guaranty. Taylor & Co. v. McClung, 2 Houst. 24; Farmers' Bank v. Tatnall, 7 Houst. 287, 31 Atl. 879; Wanamaker v. Benn., 3 Pennewill 188, 50 Atl. 512.

The demurrer is 'sustained.  