pay within three months after the coal is delivered, is not entitled to notice of accept ance. Lehigh Coal & I. Co. v. Scallen. 61 Minn. 63, 63 N. W. 245. The court stated: This instrument did not go out of the guarantor's possession as an unaccepted proposition. Its signing and delivery were the acceptance of a proposition, not the making of a proposition; and no further notice to him of the acceptance of the guaranty was required. And one who appends to an order of goods by another the words, "I hereby guarantee the above purchase," and signs it at the request of the guarantee, who wants security for his goods, enters into an absolute guaranty; and no notice of acceptance is required. Niles Tool Works Co. v. Reynolds, 4 App. Div. 24, 38 N. Y. Supp. 1028. So, one who, in response to an inquiry whether he has agreed to guarantee the payment of any goods purchased by a third person, replies that he will guarantee such person's account up to a specified sum provided certain terms of credit are granted, is bound without any further or formal notice of the acceptance of his guaranty. Drucker v. Heyl-Dia, 52 Misc. 142, 101 N. Y. Supp. 796. In Lawton v. Maner, 9 Rich. L. 335, where parties had expressed a willingness to sell on such time as would suit the purchaser if a designated person would become responsible, and the latter thereupon informed such parties that he would become responsible for a specified amount, the court intimated that the elements of a complete contract were present; that the undertaking was absolute and specific, and the delivery of the goods on the presentation of the letter in pursuance of the previous arrangement was the natural consequence of all that had preceded; and it appeared to some members of the court that the instrument in question, under such circumstances, might well be held to fix liability, without explicit notice under the general rule. But a new trial was ordered that a jury might pass upon the question whether the guarantor had knowledge that credit had been obtained on the faith of his guaranty. And in Dover Stamping Co. v. Noyes, 151 Mass. 342, 24 N. E. 53, where a corporation addressed a letter to a person, stating that it had recently opened trade with a certain firm which claimed to be backed by him, and asking whether he would be responsible for their debts; to which the person addressed replied that he was financially assisting the firm, and promised to see that the corporation was "taken care of," if the firm failed to pay its bills promptly at maturity; and which reply was answered by the corporation, with a statement that, on the strength of his assurance, it would be glad to continue the trade, the court said that, if it was necessary to give notice of the acceptance of the guaranty, which it did not intimate, the corporation, by its final letter, accepted it. A bank which, at a creditor's request, guarantees in writing that an account will' [ be paid in fifteen days, and authorizes the creditor to draw for the amount at that time, is not released from liability, although not notified that the guaranty is accepted. Stewart v. Sharp County Bank, 71 Ark. 585, 76 S. W. 1064. The signer of a guaranty for a specified amount on obligations contracted and to be contracted by a certain firm during a given period is not entitled to notice of acceptance, where he signed the guaranty on the understanding that, if it was signed, the guarantees would sign an instrument extending credit, which was exhibited to him. Lennox v. Murphy, 171 Mass. 370, 50 N. E. 644. The court said: When the understanding was carried out, it was not necessary to notify the guarantor. He already had all the notice he needed, and to send him notice would have been merely a formal act, which is not required either by custom, or by the theory of the contract. One who, on being informed that certain parties would loan money to another person upon his security, sends him a letter in which he states that he will become such person's eventual security for the payment of the proposed loan, is not entitled to notice of acceptance of his guaranty. Caton v. Shaw, 2 Harr. & G. 13. And one who agreed in writing to pay a note in case the maker should fail to do so is liable as guarantor, although no express notice of acceptance was given him, where he signed the guaranty in response to a communication from the guarantees that, upon its execution and return, the loan for which the note was given would be made, and the guarantor knew, within two or three days, that, in reliance upon the guaranty, the loan had been made. Lynn Safe Deposit & T. Co. v. Andrews, 180 Mass. 527, 62 N. E. 1061. A written guaranty that a lessee will annually pay the stipulated rent to the lessor, executed prior to and as a condition precedent to the making of the lease and to the delivery of the property thereunder, which guaranty is a part of the consideration for the lease, is a complete and binding transaction without notice of the acceptance of the guaranty. Mitchell v. McCleary, 42 Md. 374. But, where a person of whom a certain guaranty is requested proposes another substantially different thing, there is no union of minds upon the subject; and the guarantor is entitled to notice of acceptance of his offer. Thus, one who proposed to guarantee an account for goods sold to another up to a specified amount is not liable thereon as guarantor, in the absence of notice of acceptance, where the guaranty requested of him by the vendor was for a larger amount, and further provided that he should guarantee no one else. Ruffner v. Love, 33 Ill. App. 601. So, a person requested by dealers applied to for goods by a third person to authorize the dealers to collect from him on completion of the order, but who answers that he will guarantee payment within thirty days, is not liable in the absence of notice of acceptance. Hasselman v. Japanese Development Co. 2 Ind. App. 180, 27 N. E. 318, 28 N. E. 207. In Pennsylvania a different doctrine from that embodied in the preceding cases has been laid down. In Evans v. McCormick, 167 Pa. 247, 31 Atl. 563, it was held that one who, in response to a telegram inquiring if he will guarantee payment of a certain person's purchases to a designated amount, replies that he will guarantee payment of the bill, is not liable in the absence of notice of acceptance of his guaranty. In this case it was contended by counsel that, if the guaranty is made at the request of the guarantee, it then becomes the answer of the guarantor to a proposal made to him, and its delivery to and for the use of the guarantee completes the communication between them and constitutes a contract. As authority for this proposition, Davis v. Wells, F. & Co. 104 U. S. 159, 26 L. ed. 686, and Davis Sewing Mach. Co. v. Richards, 115 U. S. 524, 29 L. ed. 480, 6 Sup. Ct. Rep. 173, were cited. But the supreme court of Pennsylvania felt bound to follow its prior decisions, which were contrary to the proposition contended for, and the reasoning in which it considered convincing, Thus, in Kay v. Allen, 9 Pa. 320, it had been determined that a precedent request by the creditor to the party subsequently offering the guaranty was not equivalent to notice of acceptance. Mr. Justice Bell, in delivering the opinion of the court, stated that he could find no warrant for the contrary view. He observed: Indeed, it is difficult to imagine how precedent request alone can supply the place of subsequent notice, since, after request made and proffer of guaranty, the merchant may refuse the credit or advance craved, and without notice the surety cannot know whether he has or has not. So far is this insisted on that it is said, without notice there can be no contract; for, like all other contracts, that of guaranty requires both a proposal and acceptance thereof. This doctrine was distinctly recognized and reaffirmed in Gardner v. Lloyd, 110 Pa. 278, 2 Atl. 562. Likewise, in Coe v. Buehler, 110 Pa. 366, 5 Atl. 20, where the guarantor signed the guaranty at the instance of the agent of the guarantee, absence of notice of acceptance was held fatal, where the contract guaranteed, though executed by the debtor, had not yet been signed by the guarantee, but was executed by him soon afterwards. d. Acceptance contemporaneous guaranty. | chased or which may be purchased to a specified amount, and are apprised when they execute the guaranty that it is accepted by the guarantees, are not entitled to further notice of acceptance. Taussig v. Reid, 145 Ill. 488, 36 Am. St. Rep. 504, 30 N. E. 1032, 32 N. E. 918. Notice of acceptance was not necessary where the guarantor, who had agreed in writing to be responsible for the value of one half of goods, to a certain amount, sold to a designated person, was present and saw the goods sold and delivered on the faith of his guaranty. Mitchell v. Railton, 45 Mo. App. 273. Nor need notice of acceptance be given where the guarantor and creditor reside in the same city, and the agreement to accept is contemporaneous with the guaranty. Cahuzac v. Samini, 29 Ala. 288. Where merchants refuse credit to a person, and he thereupon agrees to give them, as security for his bill to be made with them, the guaranty of a third person, who, in consideration of the promise of the merchants to accept it and sell the goods upon the faith of it, executes and delivers it, or causes it to be delivered, to them, the parties all being in the same city, and the information as to the amount of goods sold and the terms of credit being accessible to all, no further notice of the acceptance and action upon the guaranty by the guarantees is necessary to charge the guarantor. Walker v. Forbes, 25 Ala. 139, 60 Am. Dec. 498. The court remarked: The whole arrangement having been concluded at the same time, notice of acceptance is implied by the assent of the guarantees to the guarantor's offer. 66 One who signs in the store of the guarantees, and leaves with them as a completed contract, an absolute guaranty of the prompt payment at maturity of any sums due for purchases made by a third person, is not entitled to a formal notice of acceptance, to fix his liability. Paige v. Parker, 8 Gray, 211. The court said: 'An absolute guaranty was written by [the guarantees] in their store and for their benefit; the [guarantor] signed it there, and left it with them as a completed contract, and they retained it. This was an acceptance by them of which he must be held to have notice." Persons who guarantee in writing full payment for all goods sold and delivered by the guarantees to a designated person, and who, after signing the contract, deliver it to the guarantees' agent, who accepts it from them, are not entitled to notice of acwith ceptance. Lemp v. Armengol, 86 Tex. 690, 26 S. W. 941. The court said: "We might as well talk about notice of acceptance when the grantor in a deed has delivered it into the hands of the grantee for the purpose of passing the title." The rule requiring that notice of acceptance of a guaranty should be given within a reasonable time is inapplicable to cases where the agreement to accept is contemporaneous with the guaranty. Persons who, for value received, guarantee prompt payment at maturity of any indebtedness owing by another, for goods pur One who, at the request of the agent of the vendor, agrees in writing to pay all bills for goods purchased by a third person, not exceeding a specified sum, until the guaranty is withdrawn by written notice, think, as being executed contemporaneously with the other contract, or that it was exe was a guaranty of the fulfilment of an existing contract; and in either case no notice of acceptance is necessary. and who delivers the guaranty to the agent, by whom it is verbally accepted, is not entitled to any additional notice of accept-cuted subsequently to the other contract, and ance, although at the time it is given, both think there will be no necessity to use the guaranty, but it is understood that it shall be used if needed. Ferst v. Blackwell, 39 Fla. 621, 22 So. 892. The court remarked: There was not only an acceptance of the paper, but express notice to the guarantor of its acceptance; and as, from that moment, the paper became a complete contract, no further notice of its acceptance was necessary. So, one who executes a bond conditioned that an agent will make monthly returns to his principal for sales made, and delivers it to the agent, is not entitled to notice of acceptance, in the absence of a stipulation requiring it. Roberts v. Woven Wire Mattress Co. 46 Md. 374. The court considered the signing and delivery of the guaranty to the agent as prima facie evidence of its delivery and acceptance. V. A writing by which persons agree, for value received, to save a bank harmless, in a specified amount, from all loss by reason of its holding paper indorsed by a certain firm, is obligatory without notice of acceptance. New Haven County Bank Mitchell, 15 Conn. 206. The court remarked: The instrument was delivered to the bank by one of the guarantors, being thereunto expressly authorized for and on behalf of both, and simultaneously accepted by the bank. The delivery of the instrument under these circumstances was not an incipient step in the formation of the contract, but the result of previous negotiation and agreement, and constituted the very consummation of the contract. One who, in consideration of the payment by another of a draft drawn upon him by a third person who had consigned merchandise to the drawee to be sold, agreed to secure the latter from any loss he might sustain by reason of the merchandise failing to sell for the amount advanced, is liable although no notice of the acceptance of the guaranty was given him. Thompson v. Glover, 78 Ky. 193, 39 Am. Rep. 220. court remarked: The agreement to accept was contemporaneous with the guaranty, and was the consideration therefor, and, all the parties being privy to the whole transaction, no specific notice was necessary. The See also Snyder v. Click, 112 Ind. 293, 13 N. E. 581, infra, III., e; Chester v. Leonard, 68 Conn. 495, 37 Atl. 397, infra, III., f. e. Existing liability of definite amount. There is a well-recognized and plainly marked distinction between cases where the proposal is to guarantee the payment of a liability existing at the time and known to the guarantor, and those where the proposal is to guarantee the payment of a debt not incurred, and the character and amount of which are not known to the guarantor. In the first class of cases no notice of acceptance is required, for the guaranty becomes at once effective and operative. A writing in which the signer states that he hereby guarantees the payment of a certain amount to wholesale dealers for goods bought by another person is an absolute guaranty for a definite sum, requiring no notice of its acceptance. Kline v. Raymond, 70 Ind. 271. One who, to induce a person to proceed with the work of digging iron ore for another, warranted the performance of the written contract between them, by a written guaranty appended thereto, is liable thereon in case of the default of his principal, al- Persons who, for an expressed nominal though the guarantee had never given notice consideration, guarantee unconditionally to of the acceptance of the guaranty. Bush- a bank any existing or future indebtedness nell v. Church, 15 Conn. 406. The court of a firm, not exceeding a specified amount, said: We cannot consider this as a mere are not entitled to notice of acceptance of offer to guarantee, founded upon a future the guaranty. Wells, F. & Co. v. Davis, 2 acceptance by the guarantee. It was in- | Utah, 411. The court said: "Was this tended as a contemporaneous act on the part of all concerned. notice necessary? The guaranty was to secure an existing indebtedness as well as fuAnd one who signed a bond conditioned ture advances. The authorities are uniform for the faithful performance of a building in holding that, when such is the case, no contract by his principal is not entitled to notice is necessary. . . . The contract notice of acceptance where his contract of was absolute and unconditional, and conguaranty was executed contemporaneously tains in itself no intimation of a desire with, and as part of, the consideration of for specific notice of acceptance; hence it is the transaction guaranteed. Closson v. Bill-supposed that the guarantors had reasonaman, 161 Ind. 610, 69 N. E. 449. ble knowledge that their guaranty was accepted and acted upon, unless they were informed to the contrary." Guarantors who, by an agreement in writing indorsed on a contract by which their principal agrees to receive and sell goods in One who absolutely guarantees payment consideration of a share of the profits, un- of a specified amount for hotel accommodadertake that he will fulfil his contract, are tions furnished a third person, the indebtednot entitled to notice of acceptance of the ness to be paid on the happening of a cerguaranty. Bechtold v. Lyon, 130 Ind. 194, tain future event, is bound as guarantor, in 29 N. E. 912. The court stated: The con- the absence of notice of acceptance. McKee tract of guaranty must be regarded, we v. Needles, 123 Iowa, 195, 98 N. W. 618. The court said: Notice of acceptance of an | debtor a little more time. The guarantors of the payment of the rent specified in the lease, which agreement was made contemporaneously with the execution of the lease and indorsed upon the instrument and signed by them, are not entitled to notice of acceptance of the guaranty. Snyder v. Click, supra. The court stated: When the guaranty is direct and certain, and the thing guaranteed is definite in its amount and known to the guarantor, or might have been known to him by the exercise of ordinary care at the time the guaranty was given, notice of the acceptance of such guaranty need not have been given in order to render it binding on the guarantor. One who undertakes to pay to another a specific sum in treasury warrants before a given date, on and for the account of a third person, enters into an original and primary undertaking, and is not entitled to notice of acceptance. Mathews v. Chrisman. 12 Smedes & M. 595, 51 Am. Dec. 124. The court observed: This is not a collateral undertaking, but a contract with the payee, and no notice of any kind was necessary. But, even if it was but a guaranty, it would fall within the exception to the general rule, because it was a guaranty to pay a particular sum at a given time. It was not an indefinite promise either as to amount, or time of performance. The party knew what he had contracted to pay, and when it was to be paid; and it was his business to see that the amount was paid. So, one who signs a written agreement to pay certain promissory notes on a specified date if they are not paid by the makers is not entitled to notice of acceptance. Shropshire v. Smith (Tex. Civ. App.) 37 S. W. 174. The court said: The mere of fer to guarantee the payment of the debt of another is not binding as a matter of course until the proposal is accepted, for the simple reason that no contract is consummated until the minds of the parties meet. But the facts in this case show more than a mere proposal. An absolute contract of payment of the notes at a certain time was entered into between the parties if any thing remained unpaid on the notes at that time. When one directly binds himself to be responsible for another's contract already made, and of which he has knowledge when he signs, no notice of the acceptance is necessary. This case was reversed on rehearing in 37 S. W. 470, on the ground that the allegation in the petition that the defendant had bound himself to pay "about $800" was not sufficiently specific as against a special demurrer. Notice of acceptance is unnecessary where the guarantor, who has orally promised to pay the indebtedness if the debtor does not. writes to creditors that he will see that they get their money if they will give the Wills v. Ross, But the mere fact that a debt exists when a contract of guaranty is made will not dispense with notice of acceptance of its terms when it is of that character of guaranty that evidences a mere offer or promise, or is of that conditional character that depends upon the acceptance in order to result in a completed agreement. Wilkins v. Carter Bros. 84 Tex. 438, 19 S. W. 997. See also Sears v. Swift & Co. 66 Ill. App. 496, supra, III., b. f. Suretyship. Or,' The distinction between "guaranty" and "suretyship" is often shadowy, and frequently not observed by judges and text writers. The words are sometimes used as synonyms; but that there is a substantive distinction is not to be doubted. It seems to lie in this: That, when the sponsors for another assume a primary and direct liability to the creditor, whether conditional or not in the sense of being immediate or postponed till some subsequent occurrence, they are sureties; but, when their responsibility is secondary and collateral to that of the principal, they are guarantors. If they undertake to pay money, or do any other act, in the event their principal fails therein, they are sureties; but, if they assume the performance only in the event the principal is unable to perform, they are guarantors. to state the matter more concisely, a surety is one who undertakes to pay if the debtor does not; a guarantor if the debtor cannot ; the first is sponsor, absolutely and directly, for the principal's acts, the latter only for the principal's ability to do the act. A surety is an insurer of the debt; a guarantor is an insurer of the solvency of the debtor. This is the essential distinction. There is also a difference in the forms of the two contracts. The contract of suretyship is the joint and several contract of the principal and surety. The contract of the guarantor is his own separate undertaking in which the principal does not join. It is certain that in most cases the joint execution of a contract by the principal and another operates to exclude the idea of a guaranty, and that in all cases such fact is an index pointing to suretyship. Saint V. Wheeler & W. Mfg. Co. 95 Ala. 362. 36 Am. St. Rep. 210, 10 So. 539. It is at times difficult to determine wheth er an undertaking is one of guaranty or suretyship. Upon the determination of the question, the necessity or non-necessity of giving notice of acceptance may turn, for, although neither sureties, nor absolute guarantors, can require it, it is essential in cases of conditional guaranty. One who executes a bond as surety for another, conditioned for the payment of moneys advanced to the principal by the obligee therein, is a surety, and not a mere guarantor, and is not entitled to notice of the acceptance of the bond by the obligee. Hall v. Weaver, 34 Fed. 104. And in Saint v. Wheeler & W. Mfg. Co. supra, persons who signed a written contract under seal, whereby they guaranteed to a manufacturing company the full and faithful performance by their principal of his contract of agency, were held to be sureties, instead of guarantors, and not entitled to notice of acceptance. Their promise is not collateral in any sense whatever. Sureties or guarantors who, with their principal, jointly execute a bond conditioned for the faithful performance by the latter of his duty as a traveling and colecting salesman, are not entitled to notice of acceptance. Bryant v. Stout, 16 Ind. App. 380, 44 N. E. 68, 45 N. E. 343. The court stated: We find no case, in which the sureties or guarantors and the principal entered into a joint engagement such as the one before us, wherein it was held that guarantors was required. The bond in suit, if a guaranty, is certainly one of conclusive guaranty, and not a mere overture to guarantee; and, if so, no notice of acceptance was necessary. Persons who execute a bond for the pur¦ pose of inducing the obligee to sell goods to their principal on credit, and who undertake to make good any loss by reason of the principal's nonpayment for goods, if held to be guarantors, enter into an original under-notice of acceptance by the guarantee to the taking, and are not entitled to notice of acceptance. Wheeler v. Rohrer, 21 Ind. App. 477, 52 N. E. 780. The court said: Even if we should hold that the liability of defendant is that of a guarantor, notice of acceptance was unnecessary. If it was a contract of guaranty it was an absolute guaranty, and not an offer of guaranty; and, where an absolute guaranty is made, no notice of acceptance by the guarantee is required. A surety in a written obligation conditioned to become void if the obligors shall indemnify the obligees and save them harmless, for a sum not exceeding a specified amount for merchandise, and credit furnished the principal, is a guarantor, but not entitled to notice of acceptance. Rochford v. Rothschild, 16 Ohio C. C. 287. So, sureties who, by an instrument in writing, guarantee the payment, within twenty days after maturity, of promissory notes sold by their principal to the obligee, enter into a completed undertaking, and notice of acceptance of the same by the obligee is not necessary to charge them as obligors. Klosterman v. Olcott, 25 Neb. 382, 41 N. W. 250. The court said: Execution and delivery of the instrument was all that was necessary to consummate the contract. Sureties who execute with their principals a written obligation whereby they agree to pay to a company any sums of money owing for machines or other property sold and delivered to them by such company enter into an undertaking of absolute guaranty, and are not entitled to notice of acceptance. White Sewing Mach. Co. v. Powell, 25 Ky. L. Rep. 94, 74 S. W. 746. A writing by which the signer agrees to become surety for others for a specified amount jointly and severally with them, such agreement to be binding until a given date, constitutes an absolute guaranty; and the guarantor is not entitled to notice of acceptance. Lachman v. Block, 47 La. Ann. 505, 28 L.R.A. 255, 15 So. 153. A joint and several bond conditioned that a principal shall well and truly pay any indebtedness incurred by him to the obligee, which had appointed him its agent for the sale of sewing machines, is not a guaranty in such a sense as to entitle the sureties to notice of its acceptance. Cox v. i Weed Sewing Mach. Co. 57 Miss. 350. The court said: Sureties are joint obligors with the principal, and not separate contractors. Sureties who execute a joint and several bond whereby they undertake to pay to a bank loans which may be made to their principal, to a specified amount, are liable in the absence of notice of acceptance. McMillan v. Bull's Head Bank, 32 Ind. 11, 2 Am. Rep. 323. The court observed: There is no case in the books, to our knowledge, in which one contracting jointly with the principal debtor has been deemed a guarantor and allowed to avail himself of such defenses as are peculiar to that character. The obligation of the sureties differed in no essential respect from any ordinary bond of a principal and sureties, conditioned to answer for a default of the principal. In such cases notice of acceptance is not necessary to fix the liability of the sureties. Sureties who sign a written agreement whereby they jointly and severally guarantee the faithful performance by their principal of a contract for the purchase and delivery of sheep are not entitled to notice of acceptance of the guaranty, or of credit being given thereon. Swope v. Forney, 17 Ind. 385. Sureties on a joint and several bond conditioned for the faithful performance of a construction contract are not entitled to express notice of acceptance of their obligation, where it is absolute in terms, and was executed contemporaneously with the construction contract, and forms part of the same transaction. Chester v. Leonard, 68 Conn. 495, 37 Atl. 397. And sureties on a bond given for the protection and indemnity of employers against the default and misconduct of one appointed their general manager and agent, to operate and superintend a sawmill, if entitled to notice of acceptance, have such notice where the obligees wrote to the agent and the attorney for the sureties, on receipt of the received and accepted. Walker v. Brinkley, bond from the latter, that the bond had been 131 N. C. 17, 42 S. E. 333. g. Stipulation as to notice. In case of an absolute undertaking to pay for goods if the principal debtor does not, unless there is something in the nature of the contract or terms of the writing creating or |