Milroy v. Quinn.

Milroy, is liable to the plaintiffs for said unpaid balance. Wherefore I find for the plaintiffs the sum of $976.80."

Was it necessary that the guarantee should give the guarantor notice that he had accepted the guaranty, of his action under it in selling the goods to Conover, and of Conover's failure to meet his acceptances given in payment therefor, in order to fix the liability of the guarantor? It seems to us that this is the controlling question in the casc.

Guaranties are expressed in so many different forms, and are applicable to so many different conditions of things, that it sometimes becomes difficult to give them their true interpretation. They are often merely proposals to guarantee, sometimes mere recommendations, and frequently little more than expressions of friendship, confidence or courtesy. Sometimes they guarantee what is fixed and known; sometimes something to be done, or brought into existence; sometimes they are continuing, sometimes limited to a single transaction; sometimes direct and sometimes collateral; and always refer to something beyond themselves. They are not like bills of exchange, promissory notes, indorsements, assignments, deeds of conveyance and ordinary contracts, which, from frequent use, have become settled in their forms, and their meaning established by continuous and uniform adjudications. Guaranties are capable of classification, however, and have fixed rules of interpretation, but which are not always easy of application to given cases. For these reasons the authorities do not always harmonize. But the rule seems to be settled, that when the guaranty is direct, and the thing guaranteed definite in its amount, and known to the guarantor at the time he gives his guaranty, neither notice of the acceptance of the guaranty, nor the default of his principal, need to be given to the guarantor; for he knew when he made the guaranty the full extent of his liability. But when the guaranty is collateral, and the debt guaranteed yet to be created, the amount of which is uncertain, and may be variable, and cannot be known to the guarantor at the time he makes the guaranty, notice within a reasonable time, by the guarantor by the guarantee, of his acceptance of the guaranty, and of the default of the principal, is necessary, or the guarantor will be discharged; for he cannot, without such notice, know that the guaranty is accepted, nor of the default of his principal, nor the extent of his liability, and cannot protect himself from loss by the principal debtor.

Milroy v. Quinn.

It seems to us that the guaranty before us falls within the latter class. There is nothing in the finding of the court to show that the appellant knew his guaranty had been accepted, nor that the appellees had sold the goods to Conover upon the faith of the guaranty, nor that Conover had made default in payment therefor, nor of the amount of the liability, until the 7th day of July, 1874, within a week of the expiration of the guaranty; while during the five months which had intervened, the appellees were selling goods to Conover, to the amount of $3,000, and receiving his monthly acceptances therefor, some of which he failed to meet, and several of which were finally taken up by the appellees. Under the circumstances the notice was too late. At the time it was given it was practically useless to the appellant. The debt had been created. Conover had failed to meet his acceptances; all of which was known to the appellees months before they gave notice to the appellant. This state of facts, we think, should discharge the guarantor.

The appellees rely upon the case of Jackson v. Yandes, 7 Blackf. 526. The guaranty in that case was similar to the one in this case, except that it concluded with the following words: "This is to be construed as a continuing letter of credit and binding on us until countermanded." The guarantors having thus undertaken to be responsible till they countermanded their guaranty, notice was clearly unnecessary. In the case of Smith v. Bainbridge, 6 Blackf. 12, which was founded upon a similar guaranty, without the concluding words above quoted, the court held that notice to the guarantor was necessary. See, also, Gaff v. Sims, 45 Ind. 262.

The following authorities essentially cover the ground of guaranties, illustrate the principles governing them, and more or less directly support this opinion: Burns v. Semmes, 4 Cr. C. C. 702; Edmondston v. Drake, 5 Pet. 624; Lee v. Dick, 10 id. 482; Adams v. Jones, 12 id. 207; Shewell v. Knox, 1 Dev. 404; Stafford v. Low, 16 Johns. 67; Reynolds v. Douglass, 12 Pet. 497; McIver v. Richardson, 1 M. & S. 557; Babcock v. Bryant, 12 Pick. 133; Thomas v. Davis, 14 id. 353; Clark v. Remington, 11 Metc. 361; Kincheloe v. Holmes, B. Monr. 5; Steadman v. Guthrie, 4 Metc. (Ky.) 147; Payne v. Ives, 3 D. & R. N. P. 664; Smith v. Anthony, 5 Mo. 504; Rankin v. Childs, 9 id. 673; Lawton v. Maner, 9 Rich. 335; Solles ▾ Meugy, 1 Bailey, 620; Wardlaw v. Harrison, 11 Rich. 626; Mozby v. Tinkler, 1 Cromp. M. & R. 692; Birks v. Trippet, 1 Saund. 32; Beebe v. Dudley, 6 Fost. (N. H.) 249; Cremer v. Hig

Smith v. Yaryan.

ginson, 1 Mason, 326; Allen v. Pike, 3 Cush. 238; Wildes v. Savage, 1 Story, 22; Bradley v. Cary, 8 Greenl. 234; Norton v. Eastman, 4 id. 521; Tuckerman v. French, 7 id. 115; Howe v. Nichols, 22 Me. 175; Craft v. Isham, 13 Conn. 28; Menard v. Scudder, 7 La. Ann. 385; Bank of Illinois v. Sloo, 16 id. 539; Patterson v. Reed, 7 W. & S. 144; Kellogg v. Stockton, 29 Penn. St. 460; Taylor v. McClung, 2 Houst, 24; McCullum v. Cushing, 22 Ark. 540; Central Savings Bank v. Shine, 48 Mo. 456; s. c., 8 Am. Rep. 112; Montgomery v. Kellogg, 43 Miss. 486; s. c., 5 Am. Rep. 508; Claflin v. Briant, 58 Ga. 414; Mayfield v. Wheeler, 37 Tex. 256; Geiger v. Clark, 13 Cal. 579. See, also, the text-books: 2 Story on Cont., § 1133; Add. on Cont. § 1115; Brandt on Suretyship & Guar., §§ 157-163; Wade on Notice, §§ 378, 380, 386, 406.

According to the main current of these authorities, we think the court erred in the conclusion of law upon the special finding of facts.

The judgment is reversed, at the costs of the appellees; cause remanded, with instructions to state the conclusions of law, upon the finding of facts, in favor of the appellant, and to render judgment accordingly.

Judgment reversed and cause remanded.

SMITH V. YARYAN.

(69 Ind. 445)

Seduction-evidence.

In an action by an unmarried woman for her own seduction, it is improper to ask her on cross-examination, for the purpose of impeaching her character, if she had not had sexual intercourse with other men; but if a child had been born as the result of the alleged seduction, the inquiry is proper on the question of paternity, in order to mitigate damages.

A

CTION of seduction. The opinion states the facts. The plaintiff had judgment below.

W. P. Britton, M. W. Bruner, T. L. Stillwell and H. H. Dochterman, for appellant.

E. C. Snyder, for appellee.

Smith v. Yaryan.

WORDEN, J. Complaint by the appellee, against the appellant, us follows:

"Electa Yaryan, plaintiff, being an infant under the age of twenty-one years, by her next friend," etc., "complains of George W. Smith, defendant, and says that she is now and always has been unmarried; that on or about the day of January, 1876, said defendant, being an unmarried man, began paying his attentions to, and to wait upon, said plaintiff; that afterward, to wit, on the 14th day of July, 1876, and at divers other times thereafter, said defendant, having by his visits and attentions, and expressions of love and affection, gained the confidence and affections of the plaintiff, importuned her to sexual intercourse with him; and she, through her confidence in and love for him, yielded to his solicitations and had illicit carnal intercourse with him; that, by reason of said intercourse, she became sick and pregnant with child, by reason of which she was for a long time, to wit, one year, rendered unable to work and perform her usual services; that in consequence of the wrong done her by said defendant, she has suffered much in body and mind, and has been damaged in the sum of $3,000. Wherefore," etc.

Issue was joined, and the cause tried by a jury, resulting in a verdict and judgment for the plaintiff, for the sum of $1,000.

The statute gave the plaintiff the right of action in the following language: "Any unmarried female may prosecute as plaintiff an action for her own seduction, and may recover therein such damages as may be assessed in her favor." Code, § 24.

[Omitting a minor question.]

On the trial of the cause, the plaintiff was a witness on her own behalf, and testified, among other things, that the defendant commenced paying attentions to her in January, 1876, and continued his visits up to April, 1877; at first he came once in two weeks, then once a week, and after July, 1876, as often as two or three times a week, remaining sometimes until 12 o'clock at night, and sometimes until 2 or 3 o'clock in the morning; that on the night of July 14th, 1876, in consequence of the love she bore to the defendant, and the confidence she placed in him, she yielded to his solicitations for sexual intercourse with him, and had such intercourse with him on other occasions after that. As the result of such intercourse, she gave birth to a child on April 12, 1877.

On the cross-examination, the defendant's counsel propounded VOL. XXXV-30

Smith v. Yaryan.

to the plaintiff, as such witness, the following questions, viz.: "1st. Did you not have sexual intercourse with Howard Pierce, on or about the 14th day of July, 1876 ? 2d. Did you not have sexual intercourse with Howard Wilcox, on or about the 14th day of July, 1876? 3d. Did you not have sexual intercourse with Scott Steele, on or about the 14th day of July, 1876? 4th. Did you not have sexual intercourse with Howard Pierce, Scott Steele and Howard Wilcox, at various times, on, after and before the 14th day of July, 1876 ?"

These questions were severally objected to by counsel for the plaintiff, and the objections were sustained. Exceptions by the defendant. These questions were asked, as is shown by the record, "for the purpose of showing whether the defendant was the father of said bastard child," as well as for some other purposes.

It is abundantly established, that in an action for seduction, the woman seduced cannot be asked, on cross-examination, for the purpose of showing her bad character, whether she has not had criminal intercourse with other men, nor for the purpose of impeaching her if she deny it. Shattuck v. Myers, 13 Ind. 46; Bell v. Rinker, supra; 5 Wait Act. & Def. 667; 1 Greenl. Ev., § 458; 2 id., § 577; Hoffman v. Kemerer, 44 Penn. St. 452; Doyle v. Jessup, 29 Ill. 460. In the language of this court, in the case of Bell v. Rinker, supra, "Character could not be either attacked or sustained by proof of specific acts."

But the question arises, whether the questions propounded were not competent for the purpose indicated, viz., to show the paternity of the child.

The statute above set out, giving an unmarried woman the right to prosecute an action for her own seduction does not furnish any measure or criterion of damages, except "such as may be assessed in her favor." We suppose she could not recover, in such action, any thing for the support and maintenance of a bastard child, because that is provided for in the act on the subject of bastardy.

But where a child is born as the result of the seduction, the fact of such birth could not fail to be considered by a jury in estimating the damages to which the plaintiff would be entitled for the seduction. Indeed, it would seem to be a very proper element to be considered in assessing the damages.

There might, however, be a seduction, and the party seduced might give birth to a child having a paternity other than that of