Beardsley v. Hawes

• Decision Date: 26 July 1808
• Citation: 71 Conn. 39,40 A. 1043
• Parties: BEARDSLEY v. HAWES et al.
• Court: Connecticut Supreme Court

40 A. 1043

71 Conn. 39

BEARDSLEY

v. HAWES et al.

Supreme Court of Errors of Connecticut.

July 26, 1808.

Appeal from superior court, Fairfield county; John M. Thayer, Judge.

Action by William S. Beardsley against Mary E. Hawes and others. Facts found and judgment rendered for plaintiff. Two defendants appeal. Affirmed.

Jeremiah D. Toomey, Jr., for appellants.

Edwin F. Hall, for appellee.

HALL, J. The note and guaranty upon which this action was brought were as follows: "$2,000. Bridgeport, Conn., Jan. 6th,

1896. On demand, for value received, we jointly and severally promise to pay Wm. S. Beardsley or order the sum of two thousand (2,000) dollars, with interest payable semiannually in advance on the 1st days of July and January in each year, at the rate of six (6) per cent. per annum. Mary E. Hawes. Sarah E. Hawes. Note to be paid by the Misses Hawes. We sign the above note for security for payment thereof, which we hereby guaranty, for a valuable consideration received. George Turney. Patrick Coughlin." "Received interest to July 1st, 1896." "Received Interest to Jan. 1st,

1897. "

The note and guaranty were given to enable the makers to procure a loan of the plaintiff of $2,000. The guarantors alone defend this action. When the note was given it was understood by all parties that it was to run for some time upon interest to be paid in advance. Six months' interest was paid when the note was given, and Interest for the ensuing six months was also paid by the makers. There was no material change in the financial condition of the makers after they had given the note, and in November, 1896, they made an assignment in insolvency, since which time they have been wholly unable to pay the note. No demand of payment was made, either upon the makers or guarantors, until after the assignment, nor have the guarantors ever requested demand to be made upon the makers.

The guarantors requested the trial court to hold that their guaranty was conditional; that under Gen. St. § 1859, providing that negotiable promissory notes payable on demand remaining unpaid four months from their date should be considered overdue, the note as to them was due four months after its date; and that as the plaintiff neglected to demand payment at the end of four months, and accepted Interest after that time, and made no attempt to collect the note of the makers until the assignment in insolvency, the guarantors were not liable.

If we should hold, as requested by the defendants' counsel, that the guaranty was conditional, and not absolute, the guarantors would not be released from liability, as the facts found show that the plaintiff used due diligence to collect the note of the makers. The note itself upon which the guaranty was written showed upon its face that interest for six months was to be paid when the note was given, and therefore that the note was not to be paid at the end of four months from its date. The court finds as a fact that it was understood by all the parties that the note was to run for some time upon interest to be paid in advance. The plaintiff, in order to hold the guarantors, was not at the end of four months required to make a demand of payment which was neither contemplated nor desired by the parties; and if, by the understanding of the guarantors themselves and all the parties to the note, it was not to be paid at the end of...