Beakes v. Da Cunha — 37 N.Y. St. Rep. 14

Majority

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George E. Beakes et al., Resp’ts, v. Luiz A. Da Cunha, as Ex’r, App’lt.^[1]

(Court of Appeals,

Filed April 14, 1891.)

Headnote

1. Guaranty— Consideration.

One K., son-in-law of defendant’s testator, had been dealing with plaintiffs who did business under the firm name of George E. Beakes. Upon-security being demanded, the deceased went with K. to see one of the-plaintiffs, and executed a guaranty whereby he became responsible to. “ George E. Beakes, Esq.,” for all milk sold to K. Held, that, asthere was-evidence sufficient, though slight, to show that defendant’s testator at the time he executed the guaranty knew that plaintiffs were doing business under the firm name of George E. Beakes, and intended that the guaranty sh -uld be for the benefit of the firm, it became a continuing guaranty, and the supplying of the milk was an abundant consideration to uphold it.

2. Same—ÍTotice.

The guaranty required notice to be sent to the guarantor monthly, if payment for the previous month’s goods had not been made. Held, that notice by mail was such as all the parties contemplated and intended at the. time the guaranty was executed.

In November, 1886, the plaintiffs as co-partners were dealers in. milk in Delaware county under the name of George E. Beakes, and Ohestér L. Ketcham was a retail dealer in milk in the city of

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“New York, November 30, 1886.

George E. Beakes, Esq. :

1 hereby agree to become responsible for all the milk you may send to Chester L. Ketcham on his order, and I require of you a notice on the 20th of each month if payment for the previous month’s milk has not been made by that time.

Charles Gedhey.”

In reliance upon this guaranty the plaintiffs shipped a large -quantity of milk to Ketcham in the city of New York during the remainder of the year 1886 and the year 1887, and at the end of the latter year there was due from Ketcham to the plaintiffs on ■account of the milk so shipped $2,240.24 being the balance up-paid for milk delivered to him during the months of October, November and December, 1887. Gedney died on the 30th day of December, 1887, leaving a last will and testament in which the defendant was named executor. The will was admitted to probate and letters testamentary thereon were issued to the defendant, and the plaintiffs having presented to him as such executor a -claim for the balance due for the milk, and the claim having been disputed by the defendant, it was by agreement of the parties and with the approval of the surrogate, referred to a referee and tried before him. He reported in favor of the plaintiffs for the amount claimed. The defendant upon a case made ■and settled moved at a special term that the report be vacated and set aside, and the plaintiffs moved for the confirmation thereof. The report was confirmed and judgment having been -entered thereon the defendant appealed to the g'eneral term where it was affirmed, and then he appealed to this court.

E. H. Benn, for app’lt; Richard L. Sweezy, for resp’ts.

The written guaranty upon its face appears to be for the benefit of George E. Beakes, individually, and not for the benefit of any firm, and hence the defendant claims that the plaintiffs as co-partners cannot have the benefit of the guaranty, and his counsel relies upon the case of Barns v. Barrow, 61 N. Y., 39 . But this case is clearly distinguishable from that. There was evidence sufficient, although quite slight, to show that the defendant’s testator at the time he executed the guaranty knew that the plaintiffs were co-partners doing business under the firm name of George E. Beakes, and that he intended that the guaranty should be for their benefit. He knew that the milk which Ketcham had been receiving came from Sidney Center, Delaware county, and that that which he intended to receive after the execution "of the guaranty was to come from the same place, and the guaranty was intended to cover that milk, by whomsoever shipped. The busi • ness was carried on in the name of George E. Beakes, and the

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guaranty was intended for that business and to secure the payment o£ the milk shipped in that business to Ketcham. We cannot disturb the- finding of fact upon this point in favor of the-plaintiffs, and must, therefore, hold that the guaranty is available to them.

It is further claimed on the part of the defendant that the notice required by the written guaranty to be given on the twentieth of each month was not in fact given. Where any statute or the terms of any contract require notice to be given, and there is. nothing in the context of the statute or the contract or in the circumstances of the case to show that any other notice was intended, a personal notice must always be given. But the context or the circumstances of the case may be such as to show that a personal notice was not intended, and in such a case a notice by mail, which is the ordinary mode of giving notices in business transactions, is. authorized. Here Gedney lived in the city of New York, and this business was transacted in Delaware county, where the manager of the business resided, and it cannot be supposed that the parties had in contemplation a personal notice to be served in the city of New York on the twentieth of each month of any default in payment for the previous month’s milk.

The exigencies of the case were not such as to require such a notice, and it cannot he supposed that the parties intended it. A notice by mail would accomplish all the purposes which the guarantor had in mind in requiring it, and the acts of the parties show that they understood that was the kind of notice to be given. The evidence tends to show and authorizes the finding that the notices by mail were given as required by the guaranty on the-20th of each month, and that Gedney received them, making no complaint at any time that they were sent to him by mail, or that he did not promptly receive them, or that he was entitled to personal notice. Taking the circumstances of the case into consideration, and the conduct of the parties, it is quite clear that the notice by mail was such as all the parties contemplated and intended at the time the guaranty was executed.

The further claim is made on the part of the defendant that th& guaranty is not upheld by any sufficient consideration. Previous to the execution of the guaranty Ketcham had been receiving-plaintiffs’ milk through the Milk Exchange, some sort of a corporation or association existing in the city of New York. It is inferable that Ketcham desired to engage in dealings directly with the plaintiffs, and that he procured the guaranty in order that he might have future credit with them. This was a continuing guaranty intended to secure credit to Ketcham, and on the faith thereof the plaintiffs shipped milk to him and gave him credit, and thus under all the authorities there is abundant consideration to uphold the guaranty. Church v. Brown, 21 N. Y., 315 ; City National Bank v. Phelps, 86 id., 484; Rector, etc., v. Teed, 120 id., 583; 31 N. Y. State Rep., 908.

Ketcham was called as a witness on the part of the plaintiffs, and lie gave evidence of conversations which he had had with the-testator, and the defendant objected that he was not a competent-

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witness to prove such conversations. He was not a party to this action, nor was he interested in any way therein. There is no dispute about his liability to the plaintiffs, and if the defendant should he compelled to pay this judgment, his liability would then be transferred from the plaintiffs to the defendant, and would be no less than it was before. He could not, therefore, be excluded as a witness under § 829 of the Code.

During the progress of the trial various exceptions were taken on. the part of the defendant to the rulings of the referee upon questions of evidence. We have carefully scrutinized them all and do not think any of them point out material error. We will notice but one. While George E. Beakes was testify, ing as a witness on the part of the plaintiffs, for the purpose of showing that he had mailed notices, as required by the guarantv, to Gedney on. ■ the 20th of each month,' he was asked this question : “ Will you state whether or not it has been your custom to be at home on the 20th of every month?” This was objected to on the part of the defendant as immaterial and irrelevant, and the objection was overruled. The precise form of the question is undoubtedly open to criticism; but the meaning of the question is quite apparent. What the plaintiffs were seeking to learn by this -inquiry was whether he made it a rule, or made-it his business to be at home on the 20th of every month for the purpose of transacting the business required to be done at that time, and such an inquiry was certainly unobjectionable.

The very satisfactory opinions delivered by the referee and at the general term - render it unnecessary that more should be written now.

The judgment should be affirmed, with costs.

All concur, except Finch and Gray, JJ., absent.