Everson v. Gere — 33 N.Y. St. Rep. 462

Majority

p. 462

Charles B. Everson, Resp’t, v. R. Nelson Gere et al, App’lts.^[1]

(Court of Appeals, Second Division,

Filed October 7, 1890.)

Headnote

Bills and inotbs—Special ob gekbbal guabauty.

The Syracuse Iron Works executed its promissory note payable to the order oí Charles E. Hubbell, treasurer, who indorsed it. “pay John Crouse & Co. or order,” with the following guaranty attached, signed by the defendants : “For value received of John Crouse & Co., we do hereby guarantee to said John Crouse & Co., the payment of the note hereto annexed made by the Syracuse Iron Works. Said note being dated February 13, 1884, payable twelve months after date at the Merchants’ Rational Bank of Syracuse with interest at six per cent per aunum payable semi-annually. ” Subsequently and before the maturity of the note John Crouse & Co. endorsed the same “ without recourse,” and delivered an assignment thereof together with the written guaranty attached. Held, that this was not a. special but a general guaranty, and that the party undertook to pay the-note to John Crouse & Co. or to the person or persons to whom they should transfer it.

Appeal from an order of the general term, fourth department,, reversing a judgment entered upon a non-suit.

Lewis Marshall and Martin H. Knapp, for app’lts; Waters dr McLennan, for resp’t

This action was brought to recover the amount due-upon a promissory note guaranteed by the defendants. It appears that on the 12th day of February, 1884, the Syracuse Iron Works executed its promissory note for $36,000 payable to the order of Charles E. Hubbell, treasurer, twelve months after date with interest at six per cent per annum payable semi-annually; that the note was endorsed by Charles E. Hubbell, treasurer, “pay John Crouse- & Co. or order,” and delivered to them, and attached thereto was-the following guaranty signed by the defendants: “For value received of John Crouse & Co., we do hereby guarantee to said John Crouse & Co. the payment of the note hereto annexed made by the Syracuse Iron Works for $36,000. Said note being, dated February 12, 1884, payable twelve months after date;

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.at the Merchants’ National Bank of Syracuse with interest at six per cent per annum payable semi-annually.” Subsequently and before the maturity of the note John Crouse & Co. endorsed the same.to the plaintiff without recourse ” and at the same time expcuted and delivered an assignment thereof together with the written guaranty attached thereto. The trial court granted .a non-suit upon the following grounds : that the guaranty sued upon is special, personal to John Crouse & Co., and did not accrue to the benefit of the plaintiff. That no cause of action had accrued upon the guaranty at the time of its assignment and that no cause of action thereon was or could be assigned to the plaintiff. That John Crouse & Co., having undertaken to assign the .guaranty before the maturity of the note, the plaintiff acquired no right thereunder and cannot maintain the action.

The later propositions are involved in the former, so that but one question requires discussion, and that is whether the guaranty .sued upon is special and personal to John Crouse & Co., or is to be regarded as a general guaranty for the payment of the note. It will be observed that the guaranty was executed and attached to the note at the same time that it was endorsed and delivered to John Crouse & Co. By the general rules of construction papers thus executed and delivered are to be considered together as one instrument and the intention of the parties determined therefrom. McLaren v. Watson, 26 Wend., 425 ; Church v. Brown, 21 N. Y., 315 -319.

The note upon which the guaranty was attached was negotiable and was endorsed payable to the order of John Crouse & Co. By the guaranty the defendants undertook to pay John Crouse & Co., in case the maker did not pay the note at its maturity. It was transferable from person to person by endorsement. No trust or confidence was imposed in John Crouse & Co., and it consequently appears to us that it was the intention of the parties to undertake to pay the note to them or to the person or persons to whom they should transfer it. Stillman v. Northrup, 109 N. Y., 473 —481; 16 N. Y. State Rep., 417; Craig v. Parkis, 40 N. Y., 181 ; Claflin v. Ostrom, 54 id., 581; The Union Bank of Louisiana v. The Executors of Coster, 3 id., 203.

A special guaranty is limited to the person to whom it is addressed and usually contemplates a trust or reposes a confidence in such person. Such a guaranty may not be assignable until a right of action has arisen thereon. Evansville National Bank v. Kaufmann, 93 N. Y., 273 .

In that case the defendants had written Bingham Brothers to the effect that any draft that they may draw on A. Eeigelstock of their city they guaranteed to be paid at maturity. Here was trust and confidence reposed. The draft or drafts were to be drawn in the future, and as contemplated by the parties in the natural course of their business transactions. But in the case at bar the guaranty was attached to a promissory note previously executed and delivered. Its amount and time of payment was fixed. The ■defendants undertook to pay if the maker did not, and it could make no difference to them whether they paid to John Crouse &

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Co., or to some other person to whom they had transfeired their qlaim.

We consequently are of the opinion that the order of the general term should be affirmed, and judgment absolute ordered for the plaintiff upon the stipulation.

Ail concur, except Follett, Ch. J., not sitting.