"A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor, at the request of the other party, or if the latter's agreement to accept is contemporaneous with the guar anty ; or if the receipt from him of a valu able consideration, however small, is ac knowledged in the guaranty, the mutual as sent is proved, and the delivery of the guar anty to him or for his use completes the con tract. But if the guaranty is signed by the guarantor, without any previous request of the other party, and in his absence, for no consideration moving between them, except future advances to be made to the principal debtor, the guaranty is in legal effect an of fer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract;" Davis Sewing Mach.
Co. v. Richards, 115 U. S. 524, ,6 Sup. Ct. 173, 29 L. Ed. 480. See 34 Am. L. Reg. & Rev. 257.
The agreement of a del credere agent to pay for goods sold by him is not within the statute; Sherwood v. Stone, 14 N. Y. 267.
The form of the writing is not material; it may consist of one or more writings (pro vided they refer to each other on their face; Wiley v. Robert, 27 Mo. 388 ; but see Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 14 L. Ed. 493); in such case it is enough if one be signed ; 11 East 142. A minute of a vote of a corporation is sufficient; Tufts v. Min ing Co., 14 Allen (Mass.) 407.
There is a conflict of authority as to wheth er the consideration need appear in the writ ing. It was finally settled in England that it must ; . 4 B. & Ald. 595 ; but this is now changed by statute 19 & 20 Viet. The cases are reviewed in Brandt, Sur. & Guar. § 82. A seal imports a consideration ; id. As to the signature of the party to be charged, a seal alone is generally held sufficient ; Stra. 764 ; so is a mark ; Barnard v. Heydrick, 49 Barb. (N. Y.) 62 ; 2 M. & S. 286 ; and a sig nature by the initials only; 1 Den. 471; San born v. Flagler, 9 Allen (Mass.) 474; and a signature on a telegram ; Dunning & Smith v. Roberts, 35 Barb. (N. Y.) 463. The sig nature need not be at the foot of the writ ing ; 2 M. & W. 653.
Guaranty may be made for the tort, as well as the contract of another, and then comes under the term miscarriage in the statute; 2 B. & Ald. 613 ; Turner v. Hubbell, 2 Day (Conn.) 457, 2 Am. Dec. 115 ; 1 Wils. 305 ; Stone v. Hooker, 9 Cow. (N. Y.) 154; Avery v. Halsey, 14 Pick. (Mass.) 174.
All guaranties need a consideration to sup port them. A guaranty of the payment of a negotiable promissory note, written by a third person upon a note before its delivery, need express no consideration, even where the, law requires the consideration of the guaranty to be expressed in writing ; but the consideration which the note upon its face implies to have passed between the original parties is sufficient ; Moses v. Bank, 149 U. S. 298, 13 Sup. Ct. 900, 37 L. Ed. 743. For bearance to sue is good consideration; Browne, Stat. Fr. § 190; Sage v. Wilcox, 6 Conn. 81; 27 L. J. Exch. 120 ; Sanders v. Barlow, 21 Fed. 836; Wills v. Ross, 77 Ind. 1, 40 Am. Rep. 279. Where the guaranty is contemporaneous with the principal obliga tion, it shares the consideration of the lat ter ; Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29, 5 Am. Dec. 317; Rabaud v. De Wolf, 1 Paine 580, Fed. Cas. No. 11,519 ; Townsley v. Sumrall, 2 Pet. (U. S.) 170, 7 L. Ed. 386; Simons v. Steele, 36 N. H. 73.
A guaranty may be for a single act, or may be continuous. The cases are conflicting, as the question is purely one of the intention of the particular contract; Brandt, Sur. & Guar. 156. The tendency in this country is said to be against construing guaranties as continuing, unless the intention of the parties is so clear as not to admit of a reasonable doubt ; Bayl. Sur. & Guar. 7, citing Birdsall v. Heacock, 32 Ohio St. 177, 30 Am. Rep. 572 ; Lent v. Padleford, 2 Am. Lead. Cas. 141; Whitney v. Groot, 24 Wend. (N. Y.) 82; Taus sig v. Reid, 145 Ill. 488, 32 N. E. 918, 36 Am. St. Rep. 504. If the object be to give a stand ing credit to be used from time to time, either indefinitely or for a fixed period, the liability is continuing; Sherburne v. Paper Co., 40 Ill. App. 383 ; Conduitt v. Ryan, 3 Ind. App. 1, 29 N. E. 160 ; but if ? no time is fixed and nothing indicates the continuance of the ob ligation, the presumption is in favor of a limited liability as to time ; Crist v. - Bur lingame, 62 Barb. (N. Y.) 351. A guaranty of any bills of account for goods sold another to a certain amount is a continuing guar anty ; Sherburne v. Paper Co., 40 Ill. App. 383. A sealed continuing guaranty is revok ed by the death of the guarantor ; Slagle & Co. v. Forney's Ex'rs, 22 W. N. C. (Pa.) 457.
A continuing guaranty (so far as it is a mere offer) is revoked as to future action by the death of the guarantor ; 5 Q. B. D. 42.