respects from suretyship, and it is not easy to define it by any brief and comprehensive formula. Mr. Parsons says: "We cannot, therefore, define a guarantor of a bill or note any better, than by saying that he is one who engages that the note shall be paid, but is not an indorser nor a surety." 2 Par. Notes and Bills, 117. And yet the same author, in his excellent work on Contracts (chapter VII), uses the terms guaranty and suretyship as being of the same import. So, also, does Mr. Chitty, in his work on Contracts. Chit. Cont. 546. The contract of a surety corresponds with that of a guarantor in many respects, but important differences exist. The surety is bound with his principal as an original promisor-he is a debtor from the beginning and must see that the debt is paid, and is held ordinarily to know every default of his principal, and cannot protect himself by the mere indulgence of the creditor, nor by want of notice of the default of the principal, however such indulgence or want of notice may, in fact, injure him. Being bound with the principal, his obligation to pay is equally absolute. On the other hand, the contract of a guarantor is his own separate contract; it is in the nature of a warranty by him that the thing guaranteed, to be done by the principal, shall be donenot merely an engagement jointly with the principal to do the thing. A guarantor, not being a joint contractor with his principal, is not bound to do what the principal has contracted to do, like a surety, but only to answer for the consequences of the default of the principal. The original contract of the principal is not his contract, and he is not bound to take notice of its nonperformance; and therefore the creditor should give him notice-and it is universally held that if the guarantor can prove that he has suffered damage by the failure to give such notice, he will be discharged to the extent of the damage thus sustained. It is not so with a surety. In the present case, the contract is joint and several, and the principal debtor is a party to it. The others are described in it as sureties and expressly contract to answer as sureties. All may, of course, be sued together. But a guarantor cannot be sued with his principal; for his engagement is not jointly with the latter, but is strictly an individual. contract. There is no case in the books, to our knowledge, and some pains has been bestowed in their examination, 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 bond does not purport to be a contract collateral to some other engagement of the principal debtor. Its terms did not require that the contemplated loans should be made upon any other or additional security. It authorized loans to be made upon any terms that might be agreed to by the principal and the bank; and the obligation of the sureties was to pay them at maturity, if the principal did not. It 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, surely neither notice of acceptance nor notice of default is necessary to fix the liability of the sureties. We are of opinion that the complaint was good, and the demurrer to it properly overruled. Upon trial of the issue made by an answer of general denial, the evidence showed that the loans were not made solely upon the credit of the bond. We do not think that this affected the question of liability. Judgment affirmed. The mere fact that the parties say "guaranty" in their contract does not conclusively establish their contract as being one of guaranty; nor does the mere fact that they have called it one of suretyship prove that it is such. Their transaction is one of guaranty or of suretyship according to their intention, as indicated by all of the words of the contract, taken together, and the circumstances of the case.1 There is one point in which the contracts of suretyship and guaranty differ materially, especially in the contract known as conditional guaranty. There are two types of guaranty, viz. absolute guaranty and conditional guaranty. The absolute guaranty is very much like the contract of suretyship, and the liability upon the principal obligation comes into existence as soon as the principal fails to perform the obligation for which the guarantor is liable. The conditional guarantor agrees only that he shall be liable in case it is impossible for the creditor to enforce the contract against the principal. Perhaps the best example of the conditional guaranty is a contract which guarantees the collection of a certain promissory note. In such a case the guarantor is not liable unless the creditor can clearly show that it is impossible to collect from the principal, and furthermore he must show that he made 1 "Whether the contract is that of suretyship or guaranty does not depend upon the use of particular or technical words such as 'security,' 'surety,' 'guaranty.' or 'guarantee.' The nature of the obligation, whether primary or secondary, is the determining element; and although an agreement to stand a surety' or become 'security' indicates the undertaking of a surety, if the substance and effect of the instrument is that of a guaranty, it will be so construed, notwithstanding the word 'surety' or 'security' is used throughout the contract. On the other hand, if the obligation is direct and primary, the contract will be that of suretyship, and not that of guaranty, although the word 'guaranty' or 'guarantee' is employed. A promise to be 'responsible' for the contract of another has been held to be a contract of suretyship and not of guaranty, although the circumstances may be such as to constitute it a guaranty." 28 C. J. 891, 892. Inasmuch as a contract of guaranty is independent, it is not necessarily governed by the law of the state where the contract is to be performed. Richardson v. Draper, 23 Hun (N. Y.) 188 (1880). The defendant signed the following: "Let Mrs. Turner select about $500 to $750 worth of goods and see to me for payment." Held a guaranty. Schweitzer v. Fishel, 13 Haw. 690, 691 (1901). C. and F. enter into a written contract whereby C. agrees to sell to F. a certain number of cattle at a stipulated price and is to receive a stated advance on the purchase money, and C. further agrees to pay a certain amount as liquidated damages in case he fails to comply with his agreement. After the signatures to the contract appears the following: "We, the undersigned, guarantee the fulfillment of the above contract"-which was signed by W. The obligation of W., resting on no independent consideration, is that of surety, and not that of guarantor. Fields v Willis, 123 Ga. 272, 51 S. E. 280 (1905). Negotiable Instruments Law, § 192, says: "The person 'primarily' liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All others are 'secondarily' liable." B. signs as comaker and surety for A. B. is absolutely and primarily liable, and cannot claim right to notice as an indorser. Rouse v. Wooten, 140 N. C. 557, 53 S. E. 430. 111 Am. St. Rep. 875, 6 Ann. Cas. 280 (1906). A. executes a bond to secure the faithful performance of duties by B. A. is a guarantor. Gage v. Lewis, 68 Ill. 604 (1873). B., principal, executes a bond to secure the faithful performance of his own duties, A. joining as surety. A. is a surety, his undertaking being primary and direct. Saint v. Wheeler & Wilson Mfg. Co., 95 Ala. 362, 10 So. 539, 36 Am. St. Rep. 210 (1891). an attempt to collect within a reasonable time after the note matured. After he has performed those duties and notified the conditional guarantor, the duty of the guarantor to perform becomes absolute. Thus in only the conditional guaranty is the guarantor entitled to notice before suit is brought against him. In the other cases it is his duty to see that the principal obligation is carried out as called for by the contract. CARSON v. J. L. MOTT IRON WORKS. (Supreme Court of Appeals of Virginia, 1915. 117 Va. 21, 84 S. E. 12.) Action by the J. L. Mott Iron Works against J. Preston Carson and another. Judgment for plaintiff, and defendant Carson brings error. BUCHANAN, J. J. L. Mott Iron Works, a corporation, instituted its action of assumpsit against J. Preston Carson and J. Graham Davidson, partners trading under the firm name of Graham, Davidson & Co., as guarantors of debts aggregating $1,259.36 due to the plaintiff company for goods furnished the Southern Plumbing & Electric Company, also incorporated. Process was not served upon Mr. Davidson, but the action proceeded against Mr. Carson; who filed a plea of non assumpsit. Upon the trial of the cause, all matters of law and fact being submitted to the court, there was a judgment for the plaintiff company for the amount sued for. To that judgment this writ of error was awarded upon the petition of the defendant. As stated by the plaintiff in error in his written argument, the questions which the record presents for the decision of this court are: First. Is the guaranty sued on the contract of the petitioner? Second. If so, "is the petitioner discharged as guarantor under the contract by the acceptance by the creditor of a note of the principal debtor indorsed by a third party, given after the guaranteed debt was past due, which suspended the creditor's right of action on the guaranteed debt for several months?" As to the first question, while there is no evidence that the defendant, Carson, expressly authorized the contract of guaranty in the name of the firm, which was made by letters written by the other member of the firm, the circumstances surrounding the transaction and the subsequent conduct of the defendant were such as to fully justify the court in believing that the contract of guaranty was made with his concurrence or assent. He was interested as a stockholder in the Southern Plumbing & Electric Company, the principal debtor; he was the "moneyed man" of the corporation, as well as of the partnership; both concerns occupied the same office, though each kept separate books; the defendant was in the office almost every day, and sometimes oftener; his partner testified that he generally consulted him in regard to financial matters; and the defendant, after the guaranty had been made, in a business conversation with the secretary of the plaintiff company, after stating that he was very much interested in the Southern Plumbing & Electric Company, said that "the bills that Graham, Davidson & Co. had guaranteed would be paid; that he thought the payment being guaranteed by Graham, Davidson & Co. made the account an excellent one. * * * " The finding of the trial court on this question is not only sustained by the evidence, but it is difficult to see how, upon the record before us, any other conclusion could have been reached. The next question to be considered is: Has the defendant been discharged from his liability as such guarantor? It appears that in the summer of 1909, and after the partnership of Graham, Davidson & Co. had made the said guaranty, it was dissolved, and a corporation created, styled Graham, Davidson & Co., Incorporated, in which both members of the partnership were stockholders, and of which Davidson was president. Soon after that company's incorporation it offered to guarantee all accounts that the Southern Plumbing & Electric Company might thereafter make with the plaintiff company. That offer of guaranty was accepted. On the 3d of January following, after the indebtedness of $1,259.66 guaranteed by the partnership of Graham, Davidson & Co. had become due, the plaintiff company took a note from the principal debtor for $1,745.44, which included the account the payment of which had been guaranteed by the said partnership, payable within two months, and indorsed by "Graham, Davidson & Co., Inc." Upon the maturity of that note it was reduced by payment to $1,500 and a renewal note made, also due in two months, and indorsed by the same corporation. When that note became due, or shortly afterwards, both the maker and the indorser were insolvent. It is too well settled to need the citation of authorities that the general rule is that when the contract of the surety is for the debt of the principal, if the time of payment is extended for a definite period without the consent of the surety, by a binding agreement between the creditor and the principal, the surety is discharged. The same rule is equally applicable to the guarantor of the debt of another. 1 Brandt on Suretyship & Guaranty (3d Ed.) § 377. There was some suggestion that the original and renewal notes were accepted by the plaintiff company as collateral, but the evidence fails to show this. The record shows (as we have seen) that the defendants' firm was the guarantor of a debt of $1,259.66 due the plaintiff company, that this sum was included in the note for $11,745.44, that the note and the renewal thereof were binding agreements between the creditor and the principal debtor, and that they each extended the time within which to pay. This extension of time discharged the defendant from liability as guarantor, unless, as the trial court found, he had consented to such extension. .* * * It was not necessary that the consent of the defendant to the extension of time should be proved by direct evidence. That fact, like most others, may be proved circumstantially, as well as directly. It seems to us that upon the whole case the trial court did not err in reaching the conclusion that the defendant had consented to the extension of the time for the payment of the debt he was bound for as guarantor, and was therefore not discharged from liability. In the reply brief the further contention is made by the defendant that, even though the court was right in rendering judgment against him, |