Page Belting Co. v. Parker — 21 A.D. 160

Majority

p. 160

Page Belting Company, Respondent, v. Russell Parker, Appellant.

Headnote

Quar’anty of goods, to be purchased on. four months time—surety not discharged by the taking of a four months’ note two weeks after the last delivery—effect of the purchase being made in a firm name.

Goods were sold upon- the faith of the following guaranty: “ I hereby guarantee-the payment of the purchase of leather belting on four months’ time by Martin. Murphy,”' and' on the. representation of Murphy that he was doing business- - under the style of Keogh & Murphy the orders were entered “sold to Keogh & Murphy ” on October nineteenth, twenty-first and twenty-sixth, and on November thirteenth a note was taken at four months for the purchase price, signed. Keogh & Murphy.

Held, that the finding that the sale was made to Murphy was justified;.

That, it appearing that the belting was not only to be delivered, but was also to-be adjusted, the fact that the vendor, some two weeks after the last delivery of goods, took from the vendee his note, payable- in four months, was not such a suspension of its right to collect beyond the four months named in the-guaranty as would discharge the guarantor.

Appeal by the defendant, Russell Parker, from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Kings on the 19th day of February, 1897, upon the verdict of a jury directed by the court, and also-from an order entered in said clerk’s office on the 12th day of March, 1897, denying the defendant’s motion for a new trial made- ■ upon the minutes.

Archibald C. Shenstone, for the appellant.

James Taylor, for the respondent.

The action, was brought to recover for a bill of goods sold to Martin Murphy in pursuance of the following guaranty:

“ Messrs. Chas. A. Schieren & Co., or New York Leather Belting Co., or Page Belting Co. :

“ Gentlemen.— I hereby guarantee the payment of the purchase of leather belting on four months’ time by Martin Murphy to the extent of three hundred and fifty dollars ($350).

“ Respectfully yours,

“RUSSELL PARKER.”

The defendant contended that the sale was made to the firm of Keogh & Murphy, and that the plaintiff accepted the note of the firm, dated twelve days after the sale, payable in four months, and that thereby the guarantor was discharged.

■ At the close of the case counsel for each party moved for the direction of a verdict, and the court directed a verdict for the plaintiff.

The only question on this appeal, therefore, is whether there was evidence of the sale and delivery of the goods to Murphy instead of the firm of Keogh & Murphy, and whether the acceptance of the note of Keogh .& Murphy, dated November twelfth, payable in four months, worked a discharge of the guarantor. There was evidence tending to show the following facts: Murphy presented the guaranty to the manager of the plaintiff corporation about October eighteenth, and desired to purchase belting for a plant in Flushing, measurements for which were taken, and a few days after the goods were delivered and some changes subsequently made. The price was $354. Murphy stated to the agent that he was doing business under the style of Keogh & Murphy. The orders" were entered on the plaintiff’s book, “ Sold to Keogh & Murphy,” on October nineteenth, October twenty-first and October twenty-sixth. On November thirteenth the plaintiff received a note signed Keogh & Murphy for $350, payable in four months. Upon this evidence the learned trial judge was justified in holding that the sale was made to Murphy individually. '

The defendant contends that the belting was all delivered in October, and that the note of Keogh & Murphy was dated November twelfth, some two weeks after the last delivery of goods, and that

p. 162

this worked a suspension of the plaintiff’s right to collection beyond the four months named in the guaranty, whereby the defendant was discharged, and quotes the familiar principle that the contract of a guarantor is strictissimi jtoris. The contract, however, is not to be absurdly or unreasonably construed.

In Bank of Montreal v. Recknagel ( 109 N. Y. 482 , 490) the court held that in determining the respective obligations of the parties, based on their writings, the court should look at the surrounding circumstances, the situation and relation of the parties and the subject-matter of their negotiations, and that where there is any" Uncertainty the intention of the parties is, so to be derived as to give the contract a fair and reasonable interpretation. In the present . case it is in evidence that the belting was to be not only delivered but adjusted,.or, as the witness terms it, “installed.” Eor this service a reasonable time should be allowed, and there is nothing to show that there was anything unreasonable in the delay of a few days which might fairly be allowed to the purchaser to see whether the belt was satisfactory in character and working. We think the delay of twelve days did not release the defendant from his contract of suretyship.

As to the charging of the goods to Keogh & Murphy and taking their note, the evidencé shows that the plaintiff’s agent understood from Murphy that he was doing business under that name, but that the goods were sold on his order and to him individually, so that the transaction was intended to be, and was, with him solel-y, irrespective of the firm or style under which he was doing business. It is true that Murphy testifies that he told the plaintiff’s agent that the firm of Keogh & Murphy was composed of his wife and the-wife of Keogh, but as the defendant requested the direction of a verdict, and did not request the submission of the question of fact to the jury, the most that can be said is that there was conflicting evidence which might have been submitted to a jury, but the learned court was' justified in finding the testimony of the plaintiff’s agent to be true, and in so directing a verdict.

The judgment should be affirmed, with costs.

. All concurred.

• Judgment affirmed, with costs.

Cases cited

Bank of Montreal v. Recknagel 109 N. Y. 482 N.Y. 1888-06-05 at 490 p. 162