
    Joseph Leonard v. Charles Sweetzer.
    A guaranty of the fulfillment of a contract, written below the contract, and executed at the same time, subjects the guarantor as an original contractor, and a suit may be sustained against both parties jointly, or against either severally. An averment in the declaration, of “value received,” found in such contract, is a sufficient averment of consideration.
    This is an action of assumpsit, reserved in Delaware county.
    The action was brought upon the following instrument:
    “ For value received, I, Welcome Martin, agree and bind myself to pay the half of a certain in Knox county, in favor of the Clinton Bank of Columbus, against Joseph Leonard, William Leonard, George Leonard, and Robert T. Hickman, of about $860, more or less, and save said Joseph harmless from all costs.
    (Signed,) “ Welcome Martin.
    
      “December 13, 1837.”
    *“ I guaranty the fulfillment of the above contract.
    (Signed,) “ Charles Sweetzer.
    
      “December 13, 1837.”
    The declaration contains six counts. The first count avers a demand of Martin on March 26, 1838, and notice to defendant at the same time.
    The second count avers that no notice was given to the defendant of the non-payment by Martin, but alleges, as an excuse, that the defendant was indemnified.
    The third count is the same as the second, except that the excuse for want of notice is that defendant knew that Martin had not paid, and did not -intend to pay.
    The fourth count alleges a general request of Martin, and “ duo notice” of non-payment to defendant, without any allegation as to time or place.
    The fifth count alleges a demand of Martin on February 1,1838, and “due notice” to defendant; and in each of these counts the breach is non-payment.
    The sixth count is on an original promise of the defendant, in consideration of “ value received;” the breach, non-payment in a reasonable time. '■
    To each of these counts the defendant has interposed a special demurrer. To the first, assigning for cause, want of consideration and of reasonable demand and notice.
    To the second, third, fourth, and fifth counts, insufficient consideration, and want of legal demand and notice, and ¡to the sixth, want of consideration only, are assigned as causes of demurrer.
    T. W. Powell, for plaintiff, submitted the following authorities :
    Dugan v. Campbell, 1 Ohio, 115; Jerome v. Whitney, 7 Johns. 321; Hinman v. Moulton, 14 Ib. 467; Wheelwright v. Moore, 2 Hall, 149; Leonard v. Wredenburg, 8 Johns. 29; Adams v. Bean, 12 Mass. 142; Bailey v. Freeman, 11 Johns. 223; Stage v. *Olds, 12 Ohio, 58; Laqueer v. Prosser, 1 Hill, 256; Douglass v. Howland, 24 Wend. 48; Smith v. Dause, 6 Hill, 544; Walter v. Mascall, 13 Mee. & W. 452 ; Hitchcock v. Humphrey, 44 Com. L. 296; Reynolds v. Douglass, 12 Pet. 497; Rhat v. Poe, 2 How. 485; Wildes v. Savage, 1 Story, 22; Gibbs v. Cannon, S. & R. 198; 19 Wend. 563; 2 McLean, 558; Chit. Con. 52, n. 1; Story’s Pr. Notes, 460, 485, 566, 610; Ib. on Con. 360; 3 Kent’s Com. 129, ed. 5; 1 Saund. 33; King v. Baldwin, 2 Johns. Ch. 559; 1 Mason, 539; Savage v. Smith, 2 Black. W. 1106; 1 Saund. 116; 5 Com. Dig. 53; Cro. Jac. 68; Massey v. Rayner, 22 Pick. 228; Norton v. Eastman, 4 Greenl. 521; Tucker v. French, 7 Ib. 115; Babcock v. Bryant, 12 Pick. 135; Rapelye v. Bailey, 3 Conn. 438; Cramer v. Higginson, 1 Mason, 324; Dole v. Darius, 24 Pick. 250; Russell v. Clark, 7 Cranch, 59; Douglass v. Reynolds, 7 Pet. 113; 1 Chit. Pl. 360; 5 Com. Dig. 75; Atkinson v. Carter, 18 Eng. Com. L. 379; Lilley v. Hewett, 5 Ib. 175; Pitman’s Pr. & Sur. 84, Law Lib. 38; Williams v. Granger, 4 Conn. 444; Lent v. Paddleford, 10 Mass. 238; Seymour v. Van Slick, 8 Wend. 421; Clark v. Burdett, 2 Hall, 143; Sage v. Wilcox, 6 Conn. 81; Beckwith v. Angell, Ib. 315; Breed v. Hillhouse, 7 Ib. 523; Mason v. Pritchard, 12 East, 227; Campbell v. Butler, 14 Johns. 349; Allen v. Rightmore, 20 Ib. 365; Upham v. Price, 12 Mass. 14; Smith v. Ide, 3 Ver. 290; Peck v. Barney, 13 Ib. 93; Tillman v. Wheeler, 17 Johns. 326; Somersall v. Barnaby, Cro. Jac. 287; Atkinson and Rolfe’s case, 1. Leon. 105; Pitman v. Biddlecome, 4 Mod. 230; 11 Ib. 48; Brookback v. Taylor, Cro. Jac. 658; Phillips v. Astling, 2 Taunt. 206; Bush v. Critchfield, 4 Ohio, 104; Bright v. Carpenter, 9 Ib. 139; Hough v. Gray, 19 Wend. 202; Tenny v. Price, 4 Pick. 385; Deam v. Hall, 17 Wend. 214; Ketchell v. Burns, 24 Ib. 214; Snively v. Johnson, 1 Watts & S. 307; Beckman v. Hall, 17 Johns. 134.
    *S Finch, for defendant, relied upon the following authorities:
    Green v. Dodge & Cogswell, 2 Ohio, 430; Bright v. Carpenter et al., 9 Ib. 139; Bank of St. Clairsville v. Beebe, 6 Ib. 497; Oxford Bank v. Haynes, 8 Pick. 423; Reynolds et al. v. Douglass et al., 12 Pet. 498; Garrow v. Gills, 9 S. & R. 202; Lewis v. Brewster, 2 McLean, 21; Foote et al. v. Brown, 2 Ib. 369; Hawk v. Crittenden, Ib. 557; Nicholson v. Gouthit, 2 H. Black. 609; 7 Pet. 126.
   Avert, J.

In the first five counts of the declaration, it is the aim of the pleader so to shape his case that he may present a legal right to recover against the defendant, without proving the strict notice and demand required against the indorser of negotiable paper. Numerous authorities have been cited by the counsel, to boar upon the case, in this aspect of it, and to show the duties and liabilities arising under a guaranty. But, by the interpretation which the court have put upon this instrument, the questions thus agitated by the counsel, do not call for a decision. We regard the defendant, Sweetzer, as an original contractor. The paper was executed by himself and Martin, both at the same time, Martin signing first, and Sweetzer connecting with his signature, just enough to show that he contracted as a surety. Indeed, he is liable in this case, precisely as he would have been, if he had barely written the word “surety” after his name, and an action could be sustained, upon the paper, against Martin and Sweetzer jointly, as well as against either of them separately. In this view, the only question involved was decided by this court, in the ease of Stage v. Olds et al., 12 Ohio, 158.

To the last count of the declaration, the only exception taken is that it contains no evidence of a sufficient consideration. Here, the instrument itself expresses the consideration, as is common in notes of hand, by the words “for value received;” and, if a count setting forth the consideration, as *it is found in the written promise, would be sufficient in a suit against Martin, it will be also against the defendant, Sweetzer. The decision and reasoning of the court, in the case of Dugan v. Campbell, 1 Ohio, 115, will support the form of declaring adopted in this count. Upon this count, therefore, the plaintiff is entitled to a judgment; and under the decision that here is an original contract, on the part of .Sweetzer, and that a sufficient consideration is expressed in the instrument, all the other counts in the declaration may be sustained, for they are based upon the contract, and contain all the material averments to be found in the last count, besides those special allegations meant to raise the questions under a guaranty, and which may be stricken out, or treated as' surplusage.

The demurrer, therefore, is not well taken to either of the counts, and will be overruled.  