Holzman v. West End Paper Co.

Headnote

Contract — guaranty — action to recover money paid under contract of guaranty.

Holzman v. West End Paper Co., 190 App. Div. 119 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered

December- 19, 1919, reversing a judgment in favor of plaintiffs entered upon a verdict directed by the court and granting a new trial. Plaintiffs contracted to guarantee payment for merchandise shipped by defendant upon orders of one Luneschloss, it being agreed, however, that should any of the customers of Luneschloss “ refuse, reject or return the merchandise,” the defendant should credit or repay to the plaintiffs the amount of said merchandise, or that the plaintiffs might deduct the amount from any succeeding settlement. On the 9th of December, 1916, the defendant shipped a carload of paper to Rochester, N. Y:, to the order of Luneschloss on approved shipping instructions from the plaintiffs in accordance with the guaranty. On the sixteenth, of January thereafter the plaintiffs remitted to the defendant, in accordance with the guaranty, the sum of $2,331.63, that being the amount of the purchase price of the said carload of paper. This action was brought to recover that amount, with interest, on the theory that the merchandise was refused or rejected by Luneschloss’ customer at Rochester, or that the plaintiffs’ guaranty never attached thereto for the reason that the merchandise was not accepted and found according to the contract by the customer of Luneschloss within the meaning of the guaranty.