
    Thomas Williams vs. Eli Staton.
    A declaration in assumpsit against a guarantor, which ayers a non-payment of the debt by the principal debtor, but does not aver a non-payment by the guarantor, is bad, as alleging no breach.
    In an action against a guarantor, the averment of notice to the defendant in these words : “ of all which the said defendant had due notice,” held, to be a sufficient averment of notice for proof to be made.
    Whether a guarantor of the debt of another, in the following words, “ To Mr. I. W., if Mr. E. E. should trade with you for a jackass, I will go his security for that amount of money — E. S.,” is entitled to notice of the sale, before he can be held liable on the guaranty. Quere ?
    
    In error from the circuit court of Tallahatchee county, before the Hon. Benjamin F. Caruthers, judge.
    Thomas Williams sued Eli Staton in assumpsit in the following words : “ For that, whereas, heretofore, to wit, on the 25th day of February, in the year of our Lord one thousand eight hundred and thirty-nine, at the county aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendant, would sell and deliver to one Eli Ethridge a certain jackass, which he, the said plaintiff, then and there owned, and which the said Eli Ethridge was desirous of purchasing from the said plaintiff, he, the said defendant, undertook, and then and there faithfully promised the said plaintiff in writing, that he, the said defendant, would become security for the said Eli Ethridge, for the faithful and punctual payment of such an amount of money as he, the said Eli Ethridge, should agree and promise to pay to said plaintiff, for and in consideration of the sale and delivery, by the said plaintiff, to him, the said Eli Ethridge, of a certain jackass as aforesaid ; and the said plaintiff, avers that he, the said plaintiff, confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, on the 28th day of February, in the year of our Lord one thousand eight hundred and thirty-nine, at the county aforesaid, sell and deliver to the said Eli Ethridge a certain animal, called a jackass, on a certain credit, then and there agreed upon, by and between the said plaintiff'; and the said Eli Ethridge, that is to say, the said Eli Eth-ridge then and there agreed and promised to pay to the said plaintiff, for the consideration and purchase of the said jackass, the sum of four hundred and sixteen dollars;' two hundred dollars, being part thereof, to become due and payable twelve months after the said 2Stb day of February, A. D. 1839, and two hundred and sixteen dollars (other part thereof) to become due and payable two years after the said 28th day of February, A. D. 1839, amounting in all to the said sum of four hundred and sixteen dollars, as aforesaid; and although the said credit and time of payment of the price of the said jackass, by the said Eli Ethridge to the said plaintiff, have long since elapsed, yet the said Eli Ethridge has not (although often requested so to do) as yet paid to the said plaintiff the said sum of money above-mentioned, nor any part thereof, but has hitherto wholly neglected and refused; of all which said premises the said defendant afterwards had due notice.
    
      “ And whereas, also, heretofore, to wit, on the 25th day of February, in the year of our Lord one thousand eight hundred and thirty-nine, at the county aforesaid, the defendant, Eli Staton, made his certain instrument of writing, of that date, in the words and figures following, to wit: “Mr. Thomas Williams, if Mr. Eli Ethridge should trade with you for a jackass, I will go his security for that amount of money; so nothing more, but remain yours. 25th February, 1839. (Signed) Eli Staton; ” and then and there delivered the said instrument of writing to the said plaintiff, and thereby then and there promised the said plaintiff, if he, the said plaintiff, should sell to one Eli Ethridge a certain jackass which he, the said plaintiff’, then owned, and which the said Ethridge was desirous of purchasing, he, the said defendant, would become the said Eth-ridge’s security for the payment of such an amount oí money as the said Ethridge might agree and promise to pay to the said plaintiff for the jackass aforesaid ; and the said plaintiff avers that, confiding in the said promise and undertaking, he [the declaration here states the terms and conditions of sale to Ethridge, and continues thus:] of all which premises the said defendant, within a reasonable time afterwards, to wit, on the 20th of March, 1839, at the county aforesaid, had due notice.” The declaration then avers, in continuation of this count, that, as each instalment of the purchase-money fell due, that neither Ethridge nor any other person, for him or on his behalf, would pay the said sums; and then avers of each instalment, that the defendant had due notice of its non-payment.
    The third count of the declaration, after stating the guaranty as in the second count, and the non-payment of the notes given for the purchase-money of the jackass, and the notice to Sta-ton, continues as follows: “ And the said plaintiff further avers, that the said Eli Ethridge was, at the time the said contract was made, and has been ever since, entirely insolvent and unable to pay the said sums of money, or any part thereof; and the plaintiff further avers, that the circumstances and the insolvency of the said Eli Ethridge were well known to the said defendant at the time he, the said defendant, executed and delivered to the said plaintiff the said instrument of writing, by which he, the said defendant, guarantied the payment of such an amount of money as the said Ethridge would agree to pay to the said plaintiff for the said jackass, but that the said defendant has ever since well known the insolvency of the said Ethridge. And the plaintiff avers, that, although the credit and times of payment of the said last mentioned sums of money, from the said Eli Ethridge to the said plaintiff, have long since elapsed,, yet the said Eli Ethridge has not, as yet, paid to the said plaintiff, nor has any other person, on his behalf, paid the sums of money demanded in this count, or any part thereof, although often requested so to do, but has hitherto wholly neglected and refused, and still neglects and refuses so to do, by means of all which the said defendant then and there became liable to pay to the said plaintiff the said several sums of money in this count mentioned; and being so liable, he, the said defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at the county aforesaid, undertook, and then and there faithfully promised the said plaintiff; to pay him the said several sums of money,” &c.; concluding in the ordinary way.
    The defendant demurred generally to the first count, and specially to the second, for want of a sufficient breach and notice. The court below sustained all the demurrers, and gave judgment for the defendant, from which this writ of error is prosecuted.
    
      Waul, for plaintiff in error,
    cited 8 Dow. & Ry. 62; Chit, on Contracts, 410, 411
    
      W. G. Thompson, on the same side.
    This case is brought up on a writ of error to the judgment of the circuit court of Tallahatchee county, sustaining a demurrer to the declaration of plaintiff in error. The action is founded on defendant’s guaranty in writing, given to secure the payment of the price of a jack, which the plaintiff might sell to one Eli Ethridge. There are three counts in the declaration; the demurrer was sustained to the whole. It is contended that the counts are all good. It is stated, in the first count, that'the plaintiff, upon the faith of defendant’s undertaking, and at his request, sold the jack to Ethridge on a credit, and gave reasonable notice to defendant; that he demanded payment of Ethridge when the money became due, and gave notice to defendant of non-payment. It is contended that this is sufficient to fix defendant’s liability. The second count is substantially the same with the first, and sets out defendant’s written guaranty. In the third count, plaintiff states that Ethridge was insolvent at the time the guaranty was given, and hap been so ever since, all of which was known, to defendant. In such case, demand on the purchaser is not necessary, in order to render the guarantor liable. Reynolds v. Douglass, 12 Peters, 497.
    
      William Thompson, on the same side.
    
      Baine, for defendant in error.
    The first point that arrests the attention in this record is, that the breach in each of the three counts is for a contract entirely different from that set out in the count. The first and subsequent counts set out a contract by the defendant to become the surety for one Ethridge for the price of a jack; and the breach is, not for any contract of the defendant set out in the body of the count, but for not paying the price of the jack. “ The breach,” says Chitty, (p. 325) “ must obviously be governed by the nature of the stipulation ; ” and common sense teaches this as clearly as all the books on earth can, by any possibility, do. But says the author at the same page, and next sentence, “ It should be assigned in the words of the contract, either affirmatively or negatively.” Now when our contract here was to go security only, with what sort of right do they claim damages, because we did not pay the money ? If the plaintiff had averred that we did not go the surety of Ethridge, according to our contract, we might have replied that we did; or that we offered, and he refused to accept; or that plaintiff and Ethridge combined to defraud us, by contracting for a gross inadequacy of price, for an unsound animal — which was the fact, as part of the jury thought — in fraud of our rights. • But from all of these we are cut off. We admit we never paid the money, because that was never our contract. It is certainly a sufficient answer to this declaration, that it nowhere avers any breach of the contract on which it is founded.
    Again, secondly, we contend that the declaration should have averred a notice given to us immediately after the contract was entered into with Ethridge, (the purchaser) informing us of the nature and extent of our liability. The case of Russell v. Clark's Executors et al. 7 Cranch, 69, 2 Cond. R. 417, is explicit on this point. See 7 Peters, 125 ; 5 Peters, 624; so in Lee v. Dick, 10 Peters, 482. These authorities are clear, explicit, and decisive of the question of our right to notice. This being so, it is equally clear that it should have been so averred in the declaration. “Where notice is necessary, it ought to appear that it was given in due time and by a proper person.” 1 Chit. PI. 321; Com. Dig. PL ch. 74. No notice is averred in either count of this declaration, save the second, and that, the court must perceive, is not in “ reasonable ” time.
    
      But we insist, thirdly, from the nature of the case, that not only notice must have been alleged, but that the plaintiff should have averred a presentment to us of a note, in the presence of Ethridge, signed by him, and requested us to become security on it, before any right of action accrued; for it does seem to me, that, by no possibility, could we be liable on our agreement to “ go security,” until the jack was sold, we notified, and Eth-ridge’s note presented to us, and we requested to sign it. We certainly were not bound to seek the plaintiff, and diligently inquire whether the sale had been made, and demand to become security. Neither was it, under the strict rule of pleading, “a matter as much within our knowledge as the plaintiff’s.”
    A “request” being then necessary, it onght-to have been stated with time, and place, and circumstance, showing'by and to whom it was made.
    “ When actual request is necessary to the support of the action, a special request must be stated, and it must be shown by and to whom the same was made, and the time and place of making it, in order that the court may judge whether the request were sufficient.” 1 Chit. PI. 324.
    But again, fourthly, the court will see that our undertaking was a single and simple undertaking, making us liable to but one single and certain action ; and the plaintiff has cut it up so as to make us liable in two. Now no principle is better settled than that a plaintiff cannot split, a single demand, so as to subject a party to two actions, when he was liable to but one by his contract. If our agreement had been to go for such sums and at such times of payment = as Williams might have been pleased to contract for, then the defect complained of here would have, been obviated;
   Mr. Justice ThacheR.

delivered the opinion of the court.

This was a writ of error to Tallahatehee county circuit court. The case shows a special action of assumpsit to enforce a written contract of guaranty. The declaration contains three counts, to the first of which a general demurrer was filed, and to the second and third a special demurrer, assigning, as causes, insufficient averments of notice and breach.

The first and second counts allege no breach by the defendant, and are consequently bad.

In regard to the matter of notice, in actions of this kind, the rule is, that, in cases of written guaranty for a debt yet to be created, and of an amount not yet ascertained, the guarantor should have notice, in a reasonable time, that the guaranty is accepted, and that credit has been given on the faith of it. Mussey v. Rayner, 22 Pick. 223. The third count of the declaration in this case for an obligation of notice to the defendant, makes the averment in these words, to wit; “ of all which the said defendant afterwards had due notice.” An averment of notice in words similar to the foregoing, seem to have been treated by this court as sufficient, even upon the supposition that notice, by the nature of the action, is required to be proved, and we must therefore hold the averment of notice, in the third count of this declaration, to be sufficient. Thrasher v. Eli, use, &c. 2 S. & M. 149.

The judgment of the court below, in sustaining the demurrer to the first and second counts of the declaration, is therefore affirmed, but it is reversed as to its judgment sustaining the demurrer to the third count; which demurrer is directed to be overruled, and the cause remanded for further proceedings.  