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Roake v. Di Marco

161 A.D. 598 Court Second Department, Decision date 1914-03-27 English

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p. 598
Clarence G. Roake, Doing Business under the Name of J. J. Roake & Son, Respondent, v. Antonio Di Marco, Appellant.
Second Department,
March 27, 1914.

Headnote

Guaranty and suretyship — guaranty of payment by building contractor—limitation of guaranty.
A written guaranty stating in substance that the guarantor understands that the plaintiff is to supply a building contractor with material to the amount of $270, of which $50 has been paid, the balance to be paid at the rate of $50 a month, and which secures the payment of said balance of $220 should the contractor fail to pay, payment to be made in such case by the guarantor in monthly installments until the sum of $220 has been paid, binds the guarantor only to the amount of $220. The guaranty is exhausted when material to the amount of $270 has been furnished to the contractor, and the plaintiff cannot recover on the guaranty the value of any material furnished in excess of.said sum.
Appeal by the defendant, Antonio Di Marco, from a judgment of the County Court of Westchester county in favor of
p. 599
the plaintiff, entered in the office of the clerk of said county on the 25th day of August, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.
Solomon Goodman, for the appellant.
C. C. Fenno, for the respondent.

On April 16, 1912, defendant gave this written guaranty:

“I understand from Sullivan Parisano, of No. 6 Third Street, New Bochelle, that you are to supply him with building material to the amount of $270, of which you have received $50. That the balance is to be paid at the rate of $50 per month.

“ I am willing to secure you for the balance, which is $220, should Sullivan Parisano fail to do so, by sending you the sum of $50, my personal check to your order on the 15th days of each and every month, until the sum of $220 is paid.”

Plaintiff supplied materials, delivering on April sixteenth lumber and nails to the amount of $86.55, towards which the principal debtor had already paid $50.

By April twenty-sixth plaintiff had delivered materials up to $269.60, but up to November the total sales aggregated $391.26, against which the debtor’s part payments amounted to $185. Plaintiff testified that he had always kept the balance due him under $220. Judgment was given for the balance of the final account, $206.26, with costs.

This appeal raised the question of the intent and scope of the guaranty. Was the $220 mentioned a limit for a standing credit, or was that sum (plus $50 then paid) the limit upon the entire sales %

The first sentence of the above letter limits its scope. It contains a recital, very precise and definite, of the amount of material to be furnished, namely, $270, on which $50 had been paid, the $220 balance to be payable $50 monthly. The trial proofs did not show any error in this summary of the original agreement. Thus defendant showed just how and for what payments he was “willing to secure ” plaintiff, and confined

p. 600
it to a single transaction as definitely as if his guaranty had been indorsed upon a written contract for lumber sales. After furnishing $270 worth of material there are no words looking to further supplies or carrying the dealing beyond the first sales, as in McShane Co. v. Padian ( 142 N. Y. 207 ). Sales to that amount reached the limit imposed by defendant and exhausted his guaranty. (Fellows v. Prentiss, 3 Den. 512 ; Lamport v. Greenberg, 48 Misc. Rep. 513 ; Sherman v. Mulloy, 174 Mass. 41 .)

The judgment and order of the County Court of Westchester county must, therefore, he reversed, with costs of appeal to defendant, and judgment for the plaintiff for thirty-five dollars, with appropriate costs to defendant.

Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed, with costs of appeal to defendant, and judgment for plaintiff for thirty-five dollars, with appropriate costs to defendant.

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