Majority
p. 123ISAAC S. SMITH, Executor, etc., Appellant, v. FREDERICK W. STARR, Respondent.
Headnote
Guarantee—when personal.The defendant guaranteed the payment of a certain bond and mortgage “ to Arthur Ohilds, the present owner and holder of said bond and mortgage, his executors and administrators;” held, that the guarantee was a personal one confined to Ohilds, his executors and administrators, and that the assignee of the bond and mortgage could not maintain an action thereon.
Appeal from an order entered at the Circuit dismissing the complaint herein.
February 1, 1872, Mary Ann Sutherland and her husband gave a bond and mortgage for $3,000 to John J. Drake, who subse
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quently assigned them to Arthur Childs. On the 7th of September, 1872, the defendant entered into the following agreement:
In consideration of the sum of one dollar, to me in hand paid by Arthur Childs, the receipt whereof is hereby acknowledged, and of other valuable considerations, I, Frederick W. Starr, of the city of Brooklyn, do, for myself, my heirs, executors and administrators, guarantee the. payment of principal and interest of a certain bond and mortgage, made by Mary Ann Sutherland and Spencer Sutherland, her husband, dated February 1, 1872, to secure the sum of $3,000 and interest, which said mortgage was recorded in the Kings county register’s office, in liber 1052 of mortgages, page 154, February 6, 1872, to Arthur Childs, the present owner and holder of said bond and mortgage, his executors and administrators, according to the terms and conditions thereof, together with any costs, allowances and disbursements attending a foreclosure of the same.
Subsequently Childs assigned the bond and mortgage, but not the guarantee, to the plaintiff’s testatrix. A deficiency having arisen upon the foreclosure of the bond and mortgage, this action was brought to recover upon the guarantee, the plaintiff claiming that it was collateral to the mortgage and passed with it.
John H. Knaebel and Charles H. Smith, for the appellant.
The assignment of the bond did, “ ex prqprio vigore,” carry the title in the guarantee, to the assignee. (Pattison v. Hull, 9 Cow., 747 ; Craig v. Parkis, 40 N. Y., 181 ; Merritt v. Bartholick, 36 id., 44; Dorsheimer v. Nichols, 1 Abb. Ct. App., 519 ; Parmalee v. Dann, 23 Barb., 461 ; Jackson v. Blodget, 5 Cow., 202 ; Jackson v. Willard, 4 Johns., 43 ; 9 Wend., 80 .) The omission in the guarantee of the word “ assigns ” does not render the same nonassignable. (Averill v. Taylor, 8 N. Y., 44 ; Gould v. Ellery, 39 Barb., 163 .)
Johnston & Strauss, for the respondent.
The answer does not admit that the guarantee was given as security for the payment of the bond. If it did, there would
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be no question that it passed to the plaintiff as an incident to the debt assigned to him.[1] The bond being the principal obligation, a guarantee of the payment thereof, generally, would pass with an assignment of the bond, as a security collateral thereto'; and a formal assignment of the guarantee would not be necessary to vest the same in an assignee of the bond,[2] But the answer sets up that the guarantee was given to indemnify Mr. Childs, the plaintiff’s assignor, personally. ISTo evidence having been given besides the guarantee itself, its legal effect can be determined only by an interpretation of the language thereof. The defendant thereby guarantees the payment of the bond to “ Arthur Childs, the present owner and holder of said bond,” etc. We think the legal import of this language is an engagement to Childs only. ' The defendant, being a mere surety, cannot be bound beyond the scope of his engagement. Thus, in Wright v. Russell,[3] a bond conditioned for the honesty of one Baird, a clerk, was given by the defendant to one Wright, the employer of the clerk. Wright, subsequently to the giving of the bond, entered into partnership with one J. D. It was held that the defendant was no longer liable on the bond. The court said, <l the condition was confined to Wright only, and the breach assigned is the non-payment of the money to Wright and Delafield, which is not within the condition. So, in Barker v. Parker,[4] it was held that a bond with a condition that a clerk should faithfully serve and account for money to the obligee and his executors, did not make the obligor liable for money received by the clerk in the service of the obligee’s executor. Lord Mansfield said: “ The bond in question is relative to the service with Pyott, the testator. It was given as an indemnity that the clerk should be faithful to him.”[5] The principle of all the cases on this subject is, that a surety is not to be held beyond the precise terms of his contract. If the contract was entered into to assist a friend, it is to be construed strictly, as mere matter of legal right.
Having no means of ascertaining the actual intentions of the par
* Jackson v. Blodget, 5 Cow., 202 ; Craig v. Parkis, 40 N. Y., 181 .
† † McLaren v. Watson’s Exrs., 26 Wend., 425 .
‡ ‡ 3 Wils., 530.
§ § 1 T. R., 287.
|| || See, also, Weston v. Barton, 4 Taunt., 673; Pemberton v. Oakes, 4 Buss., 154; Chapman v. Beckington, 3 Q. B., 703; Gates v. McKee, 3 Kern., 237; Ludlow v. Simond, 2 Cal. Cas., 1.
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ties to the contract in this case besides the words they used, we can only give effect to those words according to their plain and natural import. So construed, the guarantee is that the bond should be paid to Childs, his executors and administrators. We cannot say that it was given for the purpose of facilitating a sale or other disposition of the bond, or that it was intended to be aught but an indemnity to Childs and his representatives against loss. Childs having put it out of his power to receive payment, the purpose of the guarantee has been accomplished, and the guarantor is discharged.
The judgment must be affirmed.
Present — Barnard, P. J., Gilbert and Tappen, JJ.
Judgment affirmed, with costs.