p. 26Steinhardt Bros. & Co., Appellant, v. Joel E. Marx, Respondent.(Supreme Court, Appellate Term, First Department,Headnote
Contracts — undertaking in writing — agreement to pay to an amount not exceeding in the aggregate $500 — when limitation relates to' extent of liability.Where by an original and primary undertaking in writing defendant in consideration of the sale and delivery of merchandise by plaintiff to D agreed to pay therefor to an amount not to exceed in the aggregate $500, the limitation relates to the extent of defendant’s liability to pay and does not restrict the amount of merchandise which plaintiff might deliver to D, and defendant’s liability to the extent agreed continues until notice of its withdrawal, notwithstanding plaintiff delivered to D more than $500 worth of merchandise that had been paid for.
Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered in favor of the defendant after trial by the court.
Kremer & Strasser, for appellant.
Louis Jersawitz, for respondent.
On the 12th day of May, 1910, the defendant executed and delivered to the plaintiff an instrument under seal in the following language:
“ For and in consideration of the sum of One ($1.00) Dollar, and other good and valuable consideration, receipt whereof is hereby acknowledged to me in hand paid by Steinhardt Bros. & Co., a domestic corporation, and in the further consideration of said Steinhardt Bros. & Co. delivering merchandise to P. J.
p. 27Doran of No. 2022 Lexington Avenue, Borough of Manhattan, City of New York, I hereby covenant and agree to pay for all merchandise delivered to said P. J. Doran by said Steinhardt Bros. & Co., to an amount not exceeding in the aggregate Fve Hundred ($500) Dollars. I Further Certify and Agree that my obligation to pay for said merchandise is a primary obligation. That it is the intent hereof that said Steinhardt Bros. & Co. shall not be compelled to take any action whatever against said P. J. Doran for the payment of merchandise delivered hereunder in order to establish their right to compel payment from me. I hereby authorize and instruct said Steinhardt Bros.
& Co. to deliver the merchandise sold hereunder to said P. J. Doran at No. 2022 Lexington Avenue, Borough of Manhattan, City of New York.”
It is stipulated as a fact that thereafter the plaintiff sold and delivered to Patrick J. Doran merchandise at the agreed price of $930.18, all of which has been paid for by Patrick J. Doran, except $167.01 with interest thereon from the 9th day of February, 1911. The action is brought to recover the balance unpaid as aforesaid.
In the court below the parties both considered the instrument in suit as a “guaranty,” although upon its face it was clearly an original and primary undertaking upon the part of the defendant, in consideration of the sale and delivery of merchandise by the plaintiff to one P. J. Doran, to pay for the merchandise delivered to an amount not exceeding in the aggregate $500. The defense interposed was that the plaintiff delivered merchandise to Doran in excess of $500 and has been paid up to and exceeding the aggregate amount of $500 by Doran himself.
The learned trial justice granted judgment for the defendant. I am of the opinion that this was error.
p. 28The words “ to an amount not exceeding in the aggregate Five Hundred Dollars ’ ’ were clearly intended to relate to the amount of the defendant’s liability to pay, and did not restrict the amount of merchandise which the plaintiff might deliver to Doran. There was nothing in the wording of the contract to restrict it as to time or to limit it to a single transaction. It would, therefore, continue until notice of its withdrawal.
Gates v.
McKee, 13 N. Y. 232 ;
Rindge v.
Judson, 24 id. 64;
Schinasi v. Lane, 118 App. Div. 76 , affd. without opinion
191 N. Y. 545 ;
White’s Bank of Buffalo v.
Myles, 73 id. 335.
The judgment appealed from should be reversed and judgment directed for the plaintiff for $167.01, with interest from the 9th day of February, 1911, and appropriate costs in the court below in accordance with the facts stipulated, with costs in this court to the appellant.
Bijtjr and Cohalan, JJ., concur.
Judgment reversed and judgment directed for plaintiff, with costs to appellant.