Blanding v. Cohen — 101 A.D. 442

Majority

p. 442

Lucien A. Blanding and Jesse H. Shepard, Respondents, v. Isaac M. Cohen, Appellant.

Headnote

Guaranty of collection — a judgment against the principal debtor and the issuance and return unsatisfied of an execution must be shown — when shown they a/re conclusive against the guarantor homing notice of the suit — tips guarantor is liable for the costs of such suit, the sheriff’s, fees, etc.—a bill rendered and retained without objection is some evidence qf value—prices obtained at an exchange — quotations of prices in a newspaper.

The following contract of guaranty, “In consideration of the delivery'of milk, .etc., by the parties of the first' part to the party of the second, part, and for value received, I guarantee the collection of the amounts to become due on the above contract,” is a conditional one and cannot be enforced against the guarantor until the parties of the first part to the contract have obtained judgment against the party.of the second part thereto for the amounts due under the contract and an execution issued on such judgment has been returned unsatisfied. In an action brought against the guarantor upon the guaranty, a judgment recovered against the party of the second part to the contract in an action which the guarantor was given an opportunity to defend conclusively establishes the amount due under the contract and it is unnecessary for the plaintiffs to make affirmative proof thereof.

The guarantor, in'addition to the amount due under the contract, is liable for the costs embraced in the judgment against the party of the.second part to the contract' and the sheriff’s fees for receiving and returning th& execution.

Bills rendered by. a vendor of merchandise to the vendee thereof, which bills were retained by the vendee without objection, are some evidence of the value of the merchandise and of the price which the vendee agreed to pay therefor.

The price at which butter, milk and eggs are sold on exchange is some evidence of the value thereof.

A witness called to testify as to the price of milk at a given time may be allowed to refresh his' recollection on the subject by referring to a newspaper, where proof is given that such newspaper was recognized by milkmen as the standard authority on the exchange price of milk.

, Appeal by the defendant, Isaac M. Cohen, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 18th day of May, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Henry A. Friedman, for the appellant.

Fckoard P. Ijyon, for the respondents.

The plaintiffs had a written contract with one Levy by which they were to deliver him milk, butter,'cheese and cream at certain times and prices. Indorsed upon this contract, prior to the delivery of any of the articles, was the following, signed by the defendant: In consideration of the delivery of milk, etc., by the parties of the first part to the party of the second "part, and for value received, I .guarantee the collection of the amounts to become due on the above ■contract.” The plaintiffs made deliveries under the contract and Levy having failed and neglected to pay bil ls rendered therefor, action was brought against him to recover the contract price. The plaintiffs had a judgment, upon which execution was issued, which was returned unsatisfied and they thereupon brought this action to recover from the defendant upon his guaranty.

At the trial the plaintiffs proved the recovery of the judgment against Levy, the issuance of an execution thereon and its return unsatisfied. They also proved, at the suggestion of the trial court, the delivery of the milk, butter, cheese and cream under the contract, the prices at which the same were delivered, and the rendition of bills therefor, which were not disputed but never paid.

The judgment against Levy was binding upon the defendant. He had notice of the pendency of that action, was present at the trial, and could have defended the same had he seen fit to do. so. The guaranty was a conditional one. It depended upon the plaintiffs’ procuring judgment against Levy and taking the proper steps to collect from him by the issuance of an execution thereon. This was a condition precedent and without it plaintiff could not recover against Cohen. (Northern Ins. Co. v. Wright, 76 N. Y. 445 ; Mosher v. Hotchkiss, 3 Keyes, 161.) These steps having been taken, to the knowledge of Cohen, and he having been afforded an •opportunity to defend the action, the judgment established his liability under .his guaranty, which, in addition to the purchase price ■of the milk, butter, cheese and cream, included the costs incurred in the Levy judgment and the sheriff’s fees for receiving and returning the execution. (Masher v. Hotchkiss, supra). Having proved the recovery of the judgment against Levy, and the issuance and .return of an execution unsatisfied, it was unnecessary to prove the ■delivery of the merchandise under the contract, the contract price

p. 444

and failure to pay, because the judgment conclusively established 'these facts. However, such proof did not injure the defendant. We have examined the various alleged errors as to the admission of this proof but there does not seem to be any merit in any of them. If it had been necessary to offer such proof the same was admissible and the objections thereto were unavailing. The bills rendered to Levy and his retention of them, without objection, was some evidence of value and the price agreed to be' paid. The price at. which butter, milk and eggs were sold on the exchange was also-some evidence of value. (Cliquot's Champagne, 3 Wall. 115 .) It was competent for the witness Shepard to refer to a newspaper for the purpose of refreshing his recollection as to the price of milk at a given time, proof having also been given that such paper was recognized by milkmen as the standard authority on the exchange price of milk. (Terry v. McNiel, 58 Barb. 241 ; Harrison v. Glover, 72 N. Y. 451 .) But, as already said, this proof was unnecessary. At the conclusion of the trial the facts upon which plaintiffs’ right to-recover depended were not disputed, and the trial court, such being the situation, properly directed a verdict for the plaintiffs.

It follows, therefore, that the judgment appealed from should be xaffirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ... concurred.

Judgment affirmed, with costs.

Cases cited

Northern Insurance v. Wright 76 N. Y. 445 N.Y. 1879-03-18 p. 442
Terry v. McNiel 58 Barb. 241 N.Y. Sup. Ct. 1870-06-06 p. 444
Harrison v. Glover 72 N. Y. 451 N.Y. 1878-02-12 p. 444