Kellogg v. Farquhar — 28 N.Y. St. Rep. 914

Majority

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Spencer Kellogg et al., Resp’ts, v. George Farquhar, Jr., et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

■ Principal and surety—Liability of surety on bond of agent.1 -

Défendants were sureties on an undertaking for the faithful performance" of an agent to sell snods of the plaintiffs, which'stated that he was to sell in the territory of New York and Brooklyn, and wag. to pay for all shiuments within ninety days. Held, that this did not restrict the agent from, selling in other territory, and that there being no positive restriction to that

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effect, defendants could not object that their liability was extinguished by an extension of the territory or that their obligation was not to answer generally for a failure to pay for the shipments as agreed.

Appeal from a judgment entered on the decision of the Brie circuit upon a trial before the court, without a jury.

Spencer Clinton, for resp’ts; E. V. Chamberlain, for app’lts.

The instrument upon which this action is brought is a bond, except that it has no seal. Its recital is that the plaintiffs have entered into an agreement with the defendant Farquhar whereby the latter was to sell brooms, manufactured by the plaintiffs, in the territory of Hew York and Brooklyn, and that Farquhar was to pay for each shipment of brooms within ninety days. The condition of the obligation is as follows: “ If the said George Farquhar, Jr., shall perform on his part all the terms of his said agreement with Kellogg and McDougal, and shall in all respects perform his legal duty toward them and shall pay for said brooms within ninety days from the date of each and every shipment of said brooms to him (said George Farquhar, Jr.), then this obligation to be void; otherwise, to remain in full force and effect”

The only defense set forth to the claim made by the plaintiffs which is worthy of consideration is the plea that the territory where Farquhar was authorized to sell brooms, namely, Hew York city and the city of Brooklyn, was without the consent of surety Clapp extended so as to include Jersey City and Hoboken, in the state of Hew Jersey. A proper construction of the agreement made by the surety, however, shows that such a defense is unavailing. It is founded upon a misconstruction of the contract of the parties. There was no prohibition against Farquhar selling the brooms in whatever market he might find. So far as the sales were restricted at all by the terms of the agreement, the restriction lay upon the plaintiffs, who had agreed not to ship their brooms to any other sellers in the cities of Hew York and Brooklyn. There was no restriction placed upon the region in which Farquhar might operate. In the-, letter inclosing to the plaintiffs the instrument sued upon, it is stated as follows: “You ship all brooms direct to me at Wallabout market, Brooklyn, and to sell or ship to no other house or houses who may, in any way, conflict with my trade in Brooklyn, Hew York and Jersey City, or come in competition with me, and that all brooms shipped to me by you are to be invoiced by you at ninety days at current selling prices, etc., * * * and finally that I am to handle no other brooms but your make. This agreement to continue in force as long as it is mutually satisfactory. My territory to comprise the cities of Hew York, Brooklyn and Jersey City.”

There is a verbal, discrepancy in the recital of the agreement and the letter accompanying its delivery. In such recital, the words “ Jersey City ” did not occur. This is, however, quite unimportant, because there is nothing in the agreement which restricted the sales made by‘Farquhar to any locality whatever. In the absence of a positive restriction thereon the surety is not in

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any position to interpose the objection now, that his undertaking was not to answer generally for the failure of Farquhar to pay for the several shipments at ninety days. Much of the law relating to ¡Drincipal and surety, and to the cases in which a surety is absolved where the terms of the contract have been departed from, has been laid before us in an elaborate brief of the appellants’ counsel. But if the foregoing views are correct, many of the citations made by him are inapplicable. When the rights of a surety-are to be determined by the construction of the paper which he has executed, he has no immunities that are not common with all persons sustaining contractual relations with . others. Belloni v. Freeborn, 63 N. Y., 383 . This is the only matter in the defense of sufficient moment to require any comment.

The judgment appealed from should be affirmed.

Barker, P. J., and Dwight, J., concur.