Picker v. Fitzelle — 28 A.D. 519

Majority

p. 519

Adolph Picker, Isidor Picker and Frederick Picker, Composing the Firm of Picker Brothers, Respondents, v. Francis A. Fitzelle, Appellant.

Headnote

Guaranty — when a continuing one.

A guaranty by which the guarantor agrees to pay certain parties for all goods and personal property that they may thereafter sell and deliver to a third person, “ but not exceeding on the aggregate §182 22/100. The same to be a running account for an indefinite time, and such deliveries be at such times” as said third party shall desire, is a continuing guaranty, and imposes, in the amount specified, a limitation only on the guarantor’s liability, and not on the amount of goods which the parties guaranteed may sell thereunder, and renders the guarantor liable for a balance of account to the amount named.

Appeal by the defendant, Francis A. Fitzelle, from an order of the City Court of .Yonkers, entered in the office of the clerk of said court on the 8th day of December, 1897, setting aside the verdict of a jury rendered in favor of the defendant and granting the plaintiffs’ motion for a new trial made upon the minutes.

I. J. Beaudrias, for the appellant.

Joseph F. Daly, for the respondents.

This action was brought on the following guaranty:

“ In consideration of One dollar, and other good and sufficient consideration to me in hand paid, at and before the execution and sealing of this instrument, the receipt whereof is hereby acknowledged, I, Francis A. Fitzelle, of 26 Forth Broadway, Yonkers, F. Y., .do hereby become bound to Picker Bros., of 26 Warburton avenue, said Yonkers, and agree to pay to them for all such goods and

p. 520

personal property that the said Picker Bros, may hereafter sell and deliver to Cornelius J. Fitzelle, of said Yonkers, but not exceeding on the aggregate $182.22/100. The same to be a running account for an indefinite time,, and such deliveries be at such times as said Cornelius shall desire; but the condition of this promise or agreement is that Lshall not become liable to pay said sum only in case said Cornelius shall fail and neglect to pay such amount and at such times as he shall become liable to on account of such deliveries as aforesaid.

“ Dated Yonkers, N. Y., December 1&th, 1895.

“FRANCIS A. FITZELLE. [seal.]”

There was but one issue in controversy, and that was the proper construction of this guaranty, the defendant contending that it was exhausted when the plaintiffs had sold Cornelius Fitzelle goods to the amount of $182.22, while the plaintiffs claimed that it was a continuing guaranty, the amount specified being a limitation only on the extent of the defendant’s responsibility. The court submitted the-construction of this guaranty to the jury for determination, who found in favor of the defendant. Thereafter, on the plaintiffs’ motion, the verdict was set. aside and-a new trial granted, from which order this appeal is taken. Even if evidence of the circumstances and situation of the parties was competent on the construction of the instrument, still the question of that construction was for the court, and not for the jury. (Tumbridge v. Read, 2 Silv. Ct. App. 39; Edall v. New Eriglamd R. R. Co., 18 App. Div. 216 .) However, had the jury decided the question correctly no harm would have been done; but in our opinion its decision was wrong. Had the instrument ended at the figures $182.22, we are inclined' to the opinion that even then, under'a long line of authorities, the amount specified would have been a limitation only On the defendant’s liability and not on the amount of goods which the plaintiffs might sell. (Gates v. McKee, 13 N. Y. 232 ; Rindge v. Judson, 24 id. 64; City Nat. Bank of Poughkeepsie v. Phelps, 86 id. 484.) But the further provision “ the same to be a running account for an indefinite time, arid such deliveries be at such times as said Cornelius shall desire,” puts the question beyond reasonable doubt. A running account necessarily contemplates continuous dealing, and .this intention is further emphasized by the provision that the account

p. 521

shall be for an indefinite time. It certainly was hardly contemplated that during the period over which such account would extend, the debtor would make no payments, or the aggregate of sales to him not exceed the small sum named in the guaranty. There is authority for the proposition that the. term “ running account ” means as a matter of law mutual accounts. (Brackenridge v. Balt zell, 1 Ind. 333 .) However this may be, we think that in this ease the defendant plainly intended to guarantee the balance of account to the amount specified in his undertaking.

The order appealed from should be affirmed, with costs.

All concurred.

Order granting new trial affirmed, with costs.

Cases cited

Tunbridge v. Read 2 Silv. Ct. App. 39 N.Y. 1888-04-17 p. 520
Edall v. New England Railroad 18 App. Div. 216 N.Y. App. Div. 1897-06-08 p. 520