Snyder . Click. prove, nor tend to prove, that he did not execute such guaranty. Having signed his name to such guaranty at the request of Delaney, and entrusted him with the custody thereof, appellee can not be heard to claim that he never authorized Delaney to deliver such instrument to the appellant, Snyder. But it is claimed on behalf of appellee that, although he had signed such written guaranty, and had, by his conduct, estopped himself from denying that he had authorized Delaney to deliver such instrument to appellant, and although the evidence showed that, pursuant to such authority, Delaney had in fact delivered such guaranty to appellant, yet such instrument never became a contract binding on the appellee, because the evidence failed to show that he had been notified by appellant of his acceptance of such guaranty. This claim of appellee is vigorously urged here in argument by his counsel, and he cites some authorities which seem to support such claim. But, whatever may be the law elsewhere, it is firmly settled by our decisions that where, as here, the guaranty is direct and certain, and the thing guaranteed is definite in its amount and known to the guarantor, or might have been known to him, by the exercise of ordinary care, at the time the guaranty was given, notice of the acceptance of such guaranty need not have been given in order to render it binding on the guarantor. Appellee's contract was not a mere overture or proposition to guaranty; but it was what has been called a conclusive guaranty, and no notice of its acceptance was necessary. Jackson v. Yandes, 7 Black f. 526. Under the evidence in this cause appellee's guaranty was fully executed by the delivery thereof, by his authority, contemporaneously with the execution of the written contract of lease, upon which such guaranty was endorsed for "the fulfilment of the within contract," and notice to appellee of appellant's acceptance of such guaranty was wholly unnecessary. It was further shown by the evidence that, upon the faith Snyder v. Click. of such guaranty, appellant had performed the consideration upon which the guaranty rested, by delivering the possession of the demised premises to the lessee, Delaney. "In such cases the acceptance of the guaranty, and the performance of the consideration upon which it rests, are all that are essential to make the contract complete and enforceable." So this court said (MITCHELL, J., delivering the opinion) in the recent case of Furst & Bradley M'f'g Co. v. Black, 111 Ind. 308. To the same effect, substantially, see, also, the following cases: Taylor v. Taylor, 64 Ind. 356; Milroy v. Quinn, 69 Ind. 406 (35 Am. R. 227); Kline v. Raymond, 70 Ind. 271; Wills v. Ross, 77 Ind. 1 (40 Am. R. 279); Davis v. Wells, 104 U. S. 159. It is shown by the evidence that appellee had no notice of 'Delaney's default in the payment of rent until just prior to the commencement of this suit. If it be conceded that this was not such timely notice of Delaney's default as ought to have been given appellee, yet it is not shown by the evidence that any damages resulted to appellee from the failure to give him timely notice of such default. "The failure to give notice, and the resulting damages were, however, matters of defence." Furst & Bradley Mf'g Co. v. Black, supra. Ward v. Wilson, 100 Ind. 52 (50 Am. R. 763), and cases cited. As the case in hand originated before a justice of the peace, it was not necessary that such matters of defence should be pleaded specially; but, under the statute, they might have been "given in evidence without plea." Section 1460, R. S. 1881. The burden was on appellee, of course, to sustain these matters of defence by a fair preponderance of the evidence. There was no evidence given on the trial which tended, even remotely, to show that any damages did or could result to appellee from any failure to give him timely notice of Delaney's default in the payment of the rent of the demised premises. Upon the whole case, we are of opinion that the finding Vogel v. Brown Township. of the court below was not sustained by sufficient evidence, and that it was contrary to law, and that, for these causes, it was error to overrule appellant's motion for a new trial herein. The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion. Filed Oct. 20, 1887; petition for a rehearing overruled Dec. 7, 1887. No. 12,919. JUDGMENT. VOGEL v. BROWN TOWNSHIP. Township. Misnomer. A judgment against "Brown Civil Township" is not void on account of the inaccuracy in the name of the political corporation. SAME.-Failure to Plead Misnomer.-Estoppel.-Where a writ is served on a party, individual or corporate, by a wrong name, if there is a failure to appear and plead the misnomer, such party is concluded, and in all future proceedings may be connected with the judgment by proper averments. SAME.-Default.-Failure to Call Defendant.-A failure to call a party before entering a default is a mere irregularity, and not a material error. SAME.-Summons Against Township Trustee.- Void Judgment Against Township.-A summons against “Valentine Strange, trustee of Brown Civil Township," is not a writ against the township, but against its agent merely, and will not support a judgment against the township. From the Martin Circuit Court. T. J. Brooks, S. M. Reeve, E. Moser and H. Q. Houghton, for appellant. W. R. Gardiner, S. H. Taylor and J. T. Rogers, for appellee. 112 299 112 317 113 502 112 299 127 80 112 299 131 593 112 299 136 610 112 299 119 99 150 16 112 299 159 643 Vogel v. Brown Township. ELLIOTT, J.-The object of this suit is to set aside a judgment obtained by the appellant in April, 1884. One point upon which the appellee's counsel rest their case is, that the judgment is void because it is based on a complaint against Brown Civil Township. There is no substantial merit in this contention. The addition of the word "civil," while it created an inaccuracy in the name of the political corporation, did not render the judgment void. We have very many decisions defining and declaring the difference between civil and school townships, and it is by no means uncommon to speak of an ordinary township as a civil township. The word "civil" correctly describes the township, and no one could have been misled or prejudiced by its use. The general rule is, that if the writ is served on the party by a wrong name, and he fails to appear and plead the misnomer, he is concluded, and in all future proceedings may be connected with the judgment by proper averments. First National Bank v. Jaggers, 31 Md. 38; Smith v. Patten, 6 Taunton, 115. This rule applies to corporations as well as to natural persons. Lafayette Ins. Co. v. French, 18 How. 404; Bloomfield R. R. Co. v. Burress, 82 Ind. 83. The failure to call the appellee before entering a default was a mere irregularity, and is not, even on appeal, considered as a material error. Doherty v. Chase, 64 Ind. 73. The summons issued in the original action was against "Valentine Strange, trustee of Brown Civil Township, Martin county, Indiana." This can not be regarded as a writ against the township. Strange, although the trustee, was not the township. At most he was its special agent, with naked statutory powers. Union School Tp. v. First Nat'l Bank, 102 Ind. 464; Bloomington School Tp. v. National, etc., Co., 107 Ind. 43. Unless it is otherwise expressly declared by law, it is the people of a locality who constitute the political corporation, Vogel v. Brown Township. and not the officers chosen by them. City of Valparaiso v. Gardner, 97 Ind. 1; Grant Corp. 357; Lowber v. Mayor, 5 Abbott Pr. Rep. 325; Clarke v. City of Rochester, 24 Barb. 446. It is apparent, therefore, that the utmost that can be granted the appellant is, that he asked and obtained a writ against the agent, and not against the principal. This, certainly, will not support a judgment against the principal, for the general rule-and it is an elementary one—is, that the summons must issue against the principal, and not against the agent. Here there is no summons against the township, and, consequently, no legal notice, for the summons does not purport to be directed against the corporation. The fact that knowledge of the action was possessed by the trustee will not avail, for his principal, the governmental corporation, was entitled to be notified as the law directs. It is, indeed, held by respectable authority that knowledge on the part of the defendant himself will not supply the place of a summons. Peabody v. Phelps, 9 Cal. 213; Wade Notice, section 1146. Judgment affirmed. Filed Nov. 17, 1887. |