Andes Co-operative Dairy Co. v. Commercial Casualty Insurance

Headnote

Contract — guaranty — action to recover on surety bond — defense of failure to comply with terms thereof.

Andes Co-operative Dairy Co. v. Commercial Casualty Ins. Co., 207 App. Div. 102 , affirmed.

Appeal from a judgment, entered November 30, 1923, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. The action was brought to recover the amount of a guaranty given by defendant to plaintiff to secure to the latter payment for milk pioducts sold by plaintiff to the Kremo-Lac Company. The products so sold during August, 1922, amounted to 15,960.11, which amount is unpaid. The defense was that no written contract within the terms of the guaranty was annexed thereto as required by said guaranty or bond but that the plaintiff and the Kremo-Lac Company continued to do business under an oral agreement and that the defendant insurance

company did not guarantee any oral contract; that the provision of the guaranty requiring plaintiff to give notice of default on the part of the Kremo-Lac Company within ten days after such default was not performed by plaintiff in that notice of default in the payment for 'products sold to the Kremo-Lac Company during the first half of August was not given until twelve days after default and that there was a delay of fourteen days in the notice of default as to the payment for the products sold the last half of August.