Metropolitan Manufacturing Co. v. McDonald — 26 N.Y. St. Rep. 941

Majority

p. 941

The Metropolitan Manufacturing Company, Pl’ff, v. James McDonald, Def’t.

(City Court of New York, Trial Term,

Filed October 11, 1889.)

Headnote

Guaranty-Estoppel.

Defendant, in answer to inquiries made by plaintiff, admitted that he had signed a guaranty for faithful performance of his duties by a salesman and collector for plaintiff, who, on the faith thereof, employed such person in that capacity. Held, that defendant was estopped to deny that he signed such guaranty.

p. 942

The defendant is sued on a contract in these words : “ In consideration of one dollar to me paid, and of the employment by Metropolitan Manufacturing Company of James McCloskey, as its salesman and collector, I hereby guarantee to said company the diligent and faithful performance by said McCloskey of his duties as such salesman and collector, and agree to pay to said company on demand any damages to the extent of $500 which said company may sustain by reason of any default or misconduct of said McCloskey in the course of such employment.

J. McDonald.”

Upon receiving this instrument, the plaintiff’s representative called upon the defendant, who admitted that he had signed the paper, and said: " McCloskey is a good fellow; give him a chance, ■and if at any time he steals your money, call around and I will give you a check.” Upon the faith of the guarantee and this statement the plaintiff employed McCloskey, who subsequently defaulted for $204.95, and the object of the present action is to recover this amount.

A. H. Berrick, for pl’ff; T. Darlington, for def’t.

The evidence proves that the guaranty was not signed by the defendant, but by his son, James K. McDonald. The plaintiff supposed it was signed by the defendant, and having satisfied 'itself as to his responsibility, its representative called upon him to ascertain if all was right.

The instrument bore the name of the defendant, and on his declaration that he had signed it, the plaintiff acted upon the faith of the representation, and the defendant cannot now deny its truth. Continental Natl. Bank v. Natl. Bank, 50 N. Y., 575 ; Merrill v. Tyler, Selden’s Notes, 2, 47; Bouvier’s Diet., title “ Estoppel; ” Anderson’s Diet., title “ Estoppel in Pais.” The defendant testifies that he had no recollection of making the representation, but his want of memory cannot be accepted as evidence that the representation was not made, in the face of the positive proof by the disinterested witness called by the plaintiff that he did make it, particularly as the defendant refused to make his denial positive, although urged to do so. He evidently felt that he may have made the representation, and did not want to take the responsibility of denying it under oath. The proof of McCloskey’s default having been sufficiently established by the proofs, it follows that the plaintiff is entitled to judgment for $204.95, with interest aggregating $221.72, with costs.