p. 541In general, an action to recover money received by the defendant in the character of trustee cannot be maintained until after a demand, or proof in some other way that there has been an abuse of the trust.
This case was before the court in January, 1843, and is reported in 4 Hill, 200 . On a second trial it appeared that the castings were delivered to Johnson on the 22d of May, 1839, and on that day Johnson gave the plaintiff his promissory note for the amount, payable seven months from date. The plaintiff said he took the note because he considered Johnson good. It was proved that the defendant afterwards had Johnson’s books in his hands, and remarked that the plaintiff’s demand must be paid from the accounts; but he said nothing about his being holden to the plaintiff. The defendant delivered the accounts to one Topliff, and told him to collect and pay over the money to the plaintiff. Topliff collected five or six dollars, and offered the money to the plaintiff, which he refused to receive. The defendant moved for a nonsuit, on the ground, among others, ' that there had not been a compliance with the terms of the guaranty, by which the plaintiff was to wait until the 1st of January, 1840; and he took Johnson’s note payable on the 22d of December preceding, or, with grace, on the 25th. The action was not commenced until after the 1st of January, 1840: and it did not appear that the plaintiff had ever called upon Johnson. The judge refused the motion for a nonsuit, saying, he supposed all the questions had been examined when the case was before this court on the former occasion. The defendant excepted, and a verdict having been found against him, he now^ moved for a new trial on a bill of exceptions.
J. Watson & B. D. Noxon, for the defendant.
A. Taber, for the plaintiff.
The terms of a guaranty must be strictly complied with, or the guarantor will not be bound. If he proposes a credit, that particular .credit must be given to the principal. It is not enough that the creditor waits until the
p. 542time has expired before he calls for payment. He must
agree to wait, so that he cannot sue in the meantime.
(Wright v. Johnson, 8 Wend. 512 ;
Bacon v.
Chesney, 1
Stark. Rep. 192;
and see Dobbin v. Bradley, 17 Wend. 422 .) If the note was out of the way, the fact that the plaintiff received the guaranty, delivered the property, and did not call for payment until the specified time had expired, would be a sufficient ground for presuming that he agreed to give the required credit. But the note takes away all ground for such an inference; and proves that the plaintiff did not give the specified credit to the principal. On the contrary, he made an agreement which obliged Johnson to pay at an earlier period. The fact that the credit was abridged only a few days, is not important. Cutting off a week is as fatal as though it had been a month. The defendant may have had special reasons for fixing on
the first of January as the time for payment. But whether he had or not, it is fatal to the action that there has not been a compliance with the terms of the guaranty. The condition on which the defendant proposed to contract has not been accepted.
(Dobbin v.
Bradley, 17
Wend. 422 ;
Birckhead v.
Brown, 5
Hill, 634 .) The objection cannot
be got over.But it is said that the plaintiff could recover under the money counts the five dollars which the defendant had collected on Johnson’s accounts, and consequently that the motion for a non-suit was properly overruled. There are two answers to this argument. The first is, that no such question appears to have been made on the trial. The defendant moved for a nonsuit on the ground that no action could be maintained upon the guaranty. That was the question which the judge decided, and the defendant excepted to his opinion. The plaintiff cannot take away the right of review by starting a question now, which was not made on the trial, about the. little sum of five dollars. The .effect would be to charge the defendant with the principal debt, for which he is not liable. The other answer is, that as to the five dollars thé defendant stands in the character of a trustee', and an action will not lie until after a demand of the money, or proof in some other way that there has been an