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reasonably definite as to time and for a valid consideration. Payment of interest in advance is a sufficient consideration. Schnitzler v. National Bank, 1 Kan. App. 674 (42 Pac. 496); Sweet v. Newberry, 92 Mich. 515 (52 N. W. 1005). In this case there was no express stipulation in the contract of extension that a delay should not affect the right to proceed against the surety at any time. The renewal notes were for an agreed, definite time, 90 days, and interest was paid in advance. The contract at each renewal was a definite, binding one. When the notes were given and advance interest paid, neither the bank nor the guarantors could take any steps to enforce payment until the debt was again due.

It is undoubtedly the law that evidence is competent to show the relations of parties and attending circumstances as an aid in interpreting, or construing, a written instrument which is uncertain and ambiguous. 32 Cyc. p. 40; Columbus Sewer Pipe Co. v. Ganser, 58 Mich. 385 (25 N. W. 377, 55 Am. Rep. 697); Big Rapids Nat. Bank v. Peters, 120 Mich. 518 (79 N. W. 891). But this cannot be extended to contradicting its plain provisions.

It is argued and urged by claimants that the indorsement upon the collateral note is not so clear as to preclude construing it to include notes to be made, as well as those already made, in the light of the relations of the parties and the mutual interpretation shown to have been given the instrument both by the bank and the makers of the note themselves. In view of the conclusions reached on other questions involved, we need not determine here whether it was competent to prove that the indorsement according to the understanding of the parties was a continuing guaranty.

Conceding that under the circumstances shown it is to be regarded as a continuing security for a succession of notes given and to be given by the nursery company to the bank, the length of time it should continue is left indefinite. The signers of the collateral note were guarantors, on a separate undertaking, payable on demand.

The security then would continue, covering renewals until some subsequent action of one of the parties terminated it. The bank could terminate it by refusing further extension. The guarantors could revoke the continuing guaranty, nothing in the contract forbidding it, by proper notice to the bank, and extensions thereafter granted would operate as a release. Death of the guarantor, of which the payee has notice, is of like effect. The death

of Frank M. Kelley, known to all the parties, was notice to the bank of revocation and terminated the progressive element of the guaranty, at least as to him and his estate. Each renewal of the notes was a new transaction with a new consideration, and when made was indemnified by a continuing and, in effect, renewed, binding promise on the part of the living guarantor. Dead guarantors can make no new promises. We think it well established that the bank had notice of Kelley's death. His business relations with the bank, and position with the company, of which the bank was a heavy creditor, and the fact that he was a well known and prominent man in that community, establish it by strong presumption; but, even if not shown, it would be no unreasonable hardship to require parties dealing in commerical paper to exercise sufficient diligence to ascertain whether the person on whose credit they are taking new notes is living.

"Guaranties have been divided into two classes: one, where the consideration is entire, that is, where it passes wholly at one time; the other, where it passes at different times, and is therefore separable or divisible. The former are not revocable by the guarantor, and are not terminated by his death and notice of that fact. Calvert v. Gordon, 3 Man. & Ry. 124, 128; Green v. Young [8 Greenl.], 8 Me. 14, 15, 16; Moore v. Wallis, 18 Ala. 458, 463; Royal Ins. Co. v. Davies, 40 Iowa, 469, 471 [20 Am. Rep. 581]; Lloyds v. Harper, L. R. 16 Ch. Div. 290, 305-307, 313, 314, 317-321; Rapp v. Insurance Co., 113 Ill. 390, 394, 395 [55 Am. Rep. 427]. The latter, on the contrary, may be revoked as to subsequent transactions by the guarantor, upon notice to that effect, and are

determined by his death and notice of that event. Offord v. Davies, 12 C. B. N. S. 748, 756, 757; Jordan v. Dobbins, 122 Mass. 168, 170, 171 [23 Am. Rep. 305]; Coulthart v. Clementson, L. R. 8 Q. B. Div. 42, 46, 47; Rapp v. Insurance Co., 113 Ill. 390, 395, 396 [55 Am. Rep. 427]; Menard v. Scudder, 7 La. Ann. 385, 391, 392 [56 Am. Dec. 610]." National Eagle Bank v. Hunt, 16 R. I. 151 (13 Atl. 116).

Vide, also, Gay v. Ward, 67 Conn. 147 (34 Atl. 1025, 32 L. R. A. 818); Jordan v. Dobbins, 122 Mass. 168 (23 Am. Rep. 305); Hyland v. Habich, 150 Mass. 112 (22 N. E. 765, 6 L. R. A. 383, 15 Am. St. Rep. 174); Valentine v. Banking Co., 133 Cal. 191 (65 Pac. 381).

The guaranty in the case at bar comes within the second class above mentioned. Death terminated the power of Kelley to act and revoked any authority or license he may have given, not yet executed or acted upon.

One year and four months after the note was given Kelley died. If the bank wished to hold the Kelley estate as a guarantor on the collateral note, it was then its duty to grant no further extensions, but proceed to collect the notes then in existence when due, or at least within a reasonable time thereafter. The nursery company's notes were 90-day paper, and the collateral note was due on demand. The nursery company was then prosperous and solvent, and continued in that condition for over two years thereafter. The bank, by legal and binding contracts, repeatedly extended the time of payment after Kelley's death, accepting renewal notes for a fixed time with interest paid in advance, as before, without even notice to his administrator, and until after the nurseries company became insolvent and conditions changed to the prejudice of the guarantor's rights. Not only was Kelley's estate released by the extension of time after his death in strict operation of law, but by attendant laches which would preclude recovery. Defendant's counsel requested the trial court to charge the jury as follows:

"It is uncontradicted that, at the time the collateral

note was given, the West Michigan Nurseries was a solvent corporation with assets sufficient to pay all its debts; that said corporation continued solvent during the lifetime of Frank M. Kelley, and that said corporation continued solvent for more than two years after the death of Frank M. Kelley. And I charge you that a delay on the part of the creditor, the Farmers' & Merchants' Bauk, of demanding payment upon the collateral note for a period of more than five years, under the circumstances shown in this record, releases Frank M. Kelley and his estate from liability upon such contract."

It is true that prompt notice of default in payment is not necessary to charge a guarantor, as in case of an indorser; but it is advisable to give such notice inasmuch as it frequently becomes important to prove notice to meet the presumption of laches arising from long delay. 1 Edwards on Bills, p. 241. Delay may, and often does, amount to laches and bar recovery regardless of the statute of limitations. While the guarantor of payment, not a party to the original note, cannot complain of laches, or want of notice, unless it has worked to his prejudice, on the other hand want of due diligence by the payee, which operates to the injury of the guarantor and occasions him loss which he could otherwise have avoided, operates as a release.

While this rule is enforced on less provocation in cases of a guaranty of collection than a guaranty of payment, it is equally applicable to the latter. It has been held that the guarantor is released if the payee fails to make demand, give notice of default, or to take any proceedings to collect for a period of five years. Shepard v. Phears, 35 Tex. 763. Where the maker, financially responsible when the debt became due, has left the State or subsequently become insolvent, a shorter period of delay is often imputed as laches and discharges the guarantor. Oxford Bank v. Haynes, 8 Pick. (Mass.) 423 (19 Am. Dec. 334); Gaff v. Sims, 45 Ind. 262; Gamage v. Hutchins, 23 Me. 565; French v. Marsh, 29 Wis. 649; Withers v. Berry, 25 Kan. 373.

For the reasons heretofore given, we are of opinion that the request quoted should have been given and a verdict directed for the defendant.

The judgment is reversed, and no new trial granted. MOORE, MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

WANNER v. MARTIN.

APPEAL AND Error-DEMURRER TO PLEA-Final Judgment. Error does not lie to review an order sustaining plaintiff's demurrer to defendant's plea in abatement, with leave to defendant to plead to the declaration, because the order entered is not a final determination; defendant's remedy is by writ of certiorari under Act No. 310, Pub. Acts 1905.

Error to Saginaw; Gage, J. Submitted October 10, 1912. (Docket No. 25.) Decided January 3, 1913.

Case by Madeline Clements Wanner against Fred J. Martin for slander. Defendant pleaded in abatement and a demurrer to the plea was sustained. Defendant brings error. Dismissed.

McHugh, Gallagher & McGann, for appellant.
Thomas A. E. Weadock, for appellee.

OSTRANDER, J. To plaintiff's declaration defendant filed a plea in abatement, and to this plea plaintiff demurred. The demurrer, coming on to be heard, was sustained, with leave to defendant to plead issuably. De

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