Plymouth Rubber Co. v. Goldstein

Headnote

Plymouth Rubber Co. v. Goldstein, 171 App. Div. 914 , affirmed.

'Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 1, 1915, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought upon the defendants’ guaranty, whereby they guaranteed to the plaintiff payment for all goods which should be sold and delivered by the plaintiff to a firm named Satz & Burman to the extent of $4,000. Plaintiff thereafter sold and delivered to said Satz & Burman goods of the agreed price of $7,934.02, upon which they were entitled to a credit of $4,175.77,

leaving a balance still due and owing of $3,758.25, for which amount the action was brought. The answer admitted the execution and delivery of the guaranty, but denied the sale and delivery of the goods by the plaintiff to Satz & Burman, the amount of credit and the balance due. As separate defenses the answer alleged that at the time of the execution of the guaranty plaintiff represented to defendants, guarantors, that Satz & Burman were indebted to plaintiff in a certain sum, whereas Satz & Burman were indebted to plaintiff $718.01 in excess of the amount stated, and that plaintiff’s agents and employees knew when the said representations were made that defendants would have refused to sign the guaranty had Satz & Burman been indebted to plaintiff in excess of the sum stated, and that the said representations were made by plaintiff with intent to deceive and defraud the defendants, suppressing the truth as to the amount of the indebtedness in order to deceive and defraud defendants, who relied thereon. As a partial defense defendants then alleged that they paid to the plaintiff the sum of $1,905.01.