Stern v. James — 21 N.Y. St. Rep. 257

Majority

p. 257

Isaac Stern et al., Resp’ts, v. Cornelius W. James, App'lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Guaranty—Construction—When a continuing one.

When a guaranty was in the following form: “Gentlemen—Our Mr. C. W. James instructs me to say in his absence that any goods you may sell to Miss Bryan would be promptly paid for. and if not so paid for by her, he will pay the account. Tours truly, John H. Comer,” Held, that the guaranty was a continuing one.

Appeal from judgment entered in favor of plaintiffs upon a trial by the court without a jury.

James M. Ball, for app’lt; Adolph L. Banger, for resp’ts.

The respondents in this action were co-partners doing business in the city of New York as im

p. 258

porters and retailers of dry goods, and for the purpose of giving credit to one, Miss M. F. Bryan, the appellant caused to be written the following letter:

“New York, December 26, 1882.

“ Messrs. Sterk Bros. :

il Gentlemen— Our Mr. C. W. James instructs me to say in his absence that any goods you may sell to Miss Bryan would be promptly paid for, and if not so paid for by her, he will pay the account.

“Yours truly,

“JOHN H. COMER.”

Subsequent to the giving of this guaranty, and solely upon the faith thereof, the respondents sold to Miss Bryan divers bills of goods which were paid; and between the 12th of January, 1885, and the 11th of March, 1885, relying solely upon the faith of such guaranty, the respondent sold certain other goods and merchandise, consisting of dry goods and wearing apparel, to Miss Bryan amounting in the aggregate to the sum of $277.07. Payment of said sum was demanded of Miss Bryan, but the same has not been paid. The respondents subsequently gave notice of such nón-payment to the appellant and demanded payment of the same which was refused, and, thereupon, this action was commenced. Upon the trial, judgment was rendered in favor of the respondent, from which judgment this appeal is taken.

The principal ground of objection which is urged is that the guaranty given by the appellant did not cover the sale of the goods made by the respondents for the reason that the guaranty was not a continuing one but only applied to-the first bill of goods sold to Miss Bryan subsequent to its being given.

The rule is undoubtedly well settled that in the construction of a guaranty, if the plain terms of the contract may be fulfilled by being confined to one transaction, courts: are not anxious to extend it to others; but where it is reasonably clear that the guaranty was intended to be continuous and to apply to more than one transaction, then, under the ordinary rules of construction, it must be held to-be continuous.

In the case at bar it is apparent from the circumstances of the parties, Miss Bryan being engaged in the millinery business and purchasing from time to time for that business and having applied to the plaintiffs for the purpose of opening an account and the plaintiffs having declined to open such account on her credit, and the defendant having furnished this guaranty in order to induce them to open the

p. 259

account, that no other construction can be placed upon the .guaranty. The guaranty is not to pay for any single bill of goods which might be purchased, but that if Miss Bryan . did not promptly pay her account the defendant would do so.

It is the account which was to be paid, not a particular bill, and Miss Bryan was the applicant to open the account, which evidently refers to a continuous account and not a single transaction. The case of Schwartz v. Hyman, ( 107 N. Y. 562 ; 12 N. Y. State Rep., 478); in no way conflicts with this view. In that case from the wording of the guaranty it was apparent that the guarantor only intended to guarantee the bill of goods which should be selected from the line of samples which were then sent, a circumstance which clearly distinguishes the case from the one at bar.

The objection that this action is not on an account or for a balance of an account, but for the bill of goods purchased March 4th 1885, is not well taken. It is entirely immaterial what the form of the action may be, whether for this single bill or for a bill included with others. The action is in reality for the balance which may be due upon the account which Miss Bryan had with the respondent, which account the appellant guaranteed.

The objection that error was committed in the exclusion •of the questions put to Mr. James as to his inducements in writing the letter and'as to the circumstances which impelled him to write it, are not well taken. There was no -question of this kind raised by the pleadings. The defendant admitted the making of the guaranty, but denied his liability, and denied any knowledge or information sufficient to form a belief as to the sale of the goods and averred, that the sale was not made upon the credit of the guaranty, but upon the credit of Miss Bryan. This raised no issue calling for the evidence as to the circumstances under which the appellant signed the guaranty or the inducements which operated upon his mind. The simple issues involved were: Did the respondent sell the goods % Did Miss Bryan owe for them ? Were they sold upon the faith of this guaranty ? And did such guaranty cover this sale ? The evidence as to the inducements which Miss Bryan held out to the appellant to induce him to sign this guaranty had no relevancy whatever to these issues. It tended in no manner to elucidate any of the questions involved. It was therefore no error to exclude this evidence.

The judgment appealed from must be affirmed, with •costs.

Macomber and Brady, JJ., concur.

Cases cited

Schwartz v. Hyman 107 N. Y. 562 N.Y. 1887-12-20 p. 259