Delafield v. Holbrook — 22 N.Y. Super. Ct. 446

Majority

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Henry Delafield, Plaintiff, v. William R. Holbrook et al., Defendants.

Headnote

The following agreement “For value received, I hereby guaranty to A., that the bond of,” &c., “Shall be of the value of,” &c., “on," &c., “at which price and at which date I will purchase the same if offered to me,” contains both a contract of guaranty, and a contract of purchase; and it

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gives A. his option to recover on the guaranty, retaining the bond, or to recover as on a sale of the bond upon delivering it up. (Barboto. J. dissented.)

(Before Robertson, White and Barbour, J. J.)

Heard, June 12;

decided, July 31, 1862.

Motion for judgment upon a verdict taken subject to the opinion of the Court at General Term.

This action was brought against William R. Holbrook and Elizabeth J. Holbrook, executors of the will of D. B. Holbrook, deceased, upon the following instrument in writing:

“ For value received, I hereby guaranty to H. and W. “ Delafield that the bond of The Newfoundland Electric “ Telegraph Company, Ho. 19, for two hundred pounds “ sterling, shall be of the value of nine hundred and sixty “ dollars, on the 7th day of March, 1855, at which price, “ and at which date, I will purchase the same if offered to “ me. Hew York, March 8,1853.

D. B. HOLBROOK.”

Upon the trial, it was proved by the plaintiff that the bond was of no value on the 7th of March, 1855; but there was no evidence that such bond was, upon that date, or at any time prior to the death of Holbrook, which subsequently occurred, offered to him to purchase. The defendant, thereupon, moved to dismiss the complaint, upon the ground,—first, that the guaranty expresses no legal consideration; and, secondly, that there was no proof that the bond was ever offered to Holbrook. The motion was refused, and verdict rendered for the plaintiff for the amount claimed, viz. $960, and interest from March 7, 1855, subject to the opinion of the General Term.

L. L. Delafield, for plaintiff.

I. This agreement may be regarded either as a contract of guaranty, or as a contract of purchase and sale, at the option of the plaintiff.

II. It cannot be held to be an entire contract without disregarding the rules of construction. As an entire contract, it is impossible to give effect to more than one-half

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of the agreement; it is then either a guaranty only, or an agreement of sale only.

And there is more reason in plaintiff’s insisting that it is a guaranty only, than in defendants’ claiming that it is a sale only, because when clauses are repugnant and incompatible, the earlier prevails. (2 Parsons on Cont., 26.)

If the contract be entire, and is to be construed as an agreement of sale, the whole of the first portion is disregarded.

But Courts will, when possible, give effect to all the parts and words of contracts. (Miller v. Cook, 23 N. Y. R., 495; Howard v. Holbrook.^[2] )

III. The plaintiff, having the option, has elected to treat this agreement as a guaranty. It was therefore unnecessary that he should offer any proof that the bond was offered to Holbrook to be purchased.

IV. This agreement, when construed as a guaranty, is perfectly valid and binding. (Miller v. Cook, 23 N. Y. R., 495.)

V. This instrument cannot be regarded as a wager contract. But if the Court should be of the opinion that it is, and that on such a wager the defendants are not liable, a new trial should be ordered, to allow the introduction of evidence of the res gestee of the transaction, and of the consideration for the agreement, so as to negative such intent.

VI. If, however, this agreement be a wager, it is not an unlawful one, and an action will lie on it.

1. The statute concerning stock jobbing is the only one that can apply to this case,- and it, (2 R. S., 116, § 7, 4th ed.,) has been repealed. (Laws 1858, p. 251.)

This repeal repealed the consequences of the statute as to contracts entered into while it was in force. (Central Bank v. Empire Stone Dressing Co., 26 Barb., 33 ; Wash-burn v. Franklin, 13 Abbotts’ Pr. R., 140.)

2. Wagers on the future market price of foreign stocks were not, at common law, and are not-now, illegal. (Chitty

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on Contracts, 5th Am. ed., 1842, 496; Morgan v. Pebrer, 2 Bing. N. C., 457; Wells v. Porter, Id., 722; Oakley v. Rigby, Id., 732; Elsworth v. Cole, 2 M. & W., 31; 3 Stephens N. P., 2739, Tit. Wagers.)

R. Goodman, for defendants.

I. The manifest intention of the parties was, that the bond should be offered to the guarantor at the time named in the guaranty, and that he should then have the privilege of purchasing it.

This intention is always the paramount rule for the interpretation of every contract.

II. Offering the bond to the guarantor at the time specified, was a condition precedent. (Antrobus v. Davidson, 3 Meriv., 569; Samuel v. Howarth, Id., 272, &c.; Elworthy v. Maunder, 2 Moody & P., 482; Pearse v. Morrice, 2 Adolph. & El., 84; Muskett v. Rogers, 5 Bing. N. C., 728; Hunt v. Smith, 17 Wend., 179 .)

III. The option accorded to the guarantor was for his benefit, and was equivalent to a demand being required upon him before the bond could be sold for less than its nominal amount, or he in anywise made liable. (Alcock v. Blowfield, Noy, 95; Russell v. Buck, 11 Vermont R., 166; Payne v. Ives, 3 Dowl. & Ryl., 664 ; Theobald on Prin. and Surety, 139; Howard v. Holbrook.^[2] )

In the recent case, decided at a General Term of this Court, (Howard, v. Holbrook, ante, 237,) I had occasion to consider a precisely similar agreement as that now before the Court, and to say that the plaintiff had his option between the contract of guaranty and that of sale; assuming that there could be no controversy that there were two such contracts in the instrument in question. A still further examination and consideration have not shaken my views then expressed.

A contract to guaranty the value of an article, and one to purchase it, arise from the use of different words, and

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lead to different results and obligations. The first requiring a consideration to support it, and the second being supported by the mutual agreement to buy and sell. Ho one could have the slightest doubt that if this instrument' had ended with the date of March 7,1855, it contained as complete a contract of guaranty as could have been drawn. The words “for value received,” expressed the consideration, and implied something more than the future payment of the expected value; “guaranty that the vakie shall be,” is peculiarly expressive of such an undertaking, and does not approach in any way the language of an undertaking to purchase. The question remains, whether the addition of the words, “ at which price and at which date I will pur- “ chase the same if offered to me,” change the whole contract to one merely of purchase, upon condition of a tender.

There is no inconsistency between the two clauses of this instrument, no indication that the second was meant to qualify the first, and no necessity of reconciling any conflicting meanings. There is no impossibility, arising from grammatical rules, of these containing two distinct obligations. Instead of the relative pronoun “ which,” the parties might have employed a conjunction, and the demonstrative pronoun “ that,” so as to have read, “ and “I will purchase the same if offered to me at that time and at that price.” Belative pronouns have precisely that effect. The sentence does not remain the less double, because of their use; it contains two undertakings,—“I “hereby guaranty the value,” and “I will purchase,” whether there be one sentence or two. A deed, by which A. conveyed to B. certain premises, the title to which A. warranted, would not the less operate as a conveyance, because it contained the warranty which referred to the premises by a ■ relative pronoun; There is no more authority for making the agreement to purchase predominate over and absorb the contract of guaranty, than for making the latter, which comes first, control the former. The “ value received ” was stated to be for the guaranty

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and not for the agreement to purchase. If the order had been inverted, placing the contract for purchase first, so as to have read: “ I will buy such a bond at such a price, on “ such a day, if offered to me, whose value I guaranty shall “ he such price,” would the last part be rejected as surplusage ? Did any one ever before draw a simple agreement to buy in the form in which this instrument is drawn, placing the main idea last, and thrusting in a guaranty before it? I cannot doubt that the legal effect of every word of the instrument expressed the intention of the parties, and was necessary to do so.

Interpreted as a double agreement, the object is very plain. It is not to be assumed that the defendants’ testator believed or expected the bond mentioned would be entirely worthless; he wished the plaintiff to retain it in his possession for two years, he, therefore, guaranteed that the value should be a certain sum at the end of that time; this, however, would give the plaintiff the right to recover only the difference between the actual and named value, on retaining the bond; but he intended to give the plaintiff the option to recover the whole of the sum named, on giving up the bond if he preferred it. A mere agreement to sell and buy would deprive the plaintiff of the right of retaining the bond, being indemnified against loss; besides, such an agreement would require the plaintiff to tender on the day, (see Howard v. Holbrook, ubi sup.,) which he might not be able to do ; whereby the defendants’ testator would escape all liability; whereas, the liability on a contract of guaranty would be fixed on the day named, and could not be increased or diminished afterwards.

I do not consider it very hard, that the plaintiff should retain the bond on being paid its inferiority of value to the sum named; what the value received was, that induced the defendants’ testator to agree thereto does not appear; he may have sold the bond to the plaintiff at the price at which he agreed to take it back, and in such case he ran the risk of its falling in value instead of the plaintiff; it is sufficient that the defendants’ testator, agreed that the

Dissent

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plaintiff might so retain such bond receiving the difference of its value.

I am of opinion, therefore, the plaintiff should retain his verdict for the amount which has been given in his favor and have judgment for that amount with costs.

The words “ for value received,” in an instrument of this kind, undoubtedly express a sufficient consideration to support it. (Howard v. Holbrook, ante, 237.) The sole question for consideration, therefore, is, whether the offer of the note to Holbrook, for purchase, at the time in that regard mentioned in the contract, was a condition precedent to a recovery under the guaranty.

The counsel for the plaintiff claims that two distinct and several undertakings, on the part of the obligor, are embraced in the contract in this case ; one being purely a warranty that the bond shall be worth $960 upon a certain day, and the other an undertaking by Holbrook that on the day designated he will buy it for that sum, if offered to him; and that the defendants had a right either to present the bond and require Holbrook to purchase it, or to proceed against him, upon the guaranty, without such presentation. Upon an examination, however, it will be found that the contract signed by Holbrook consists of one continuous sentence not susceptible of a division; and it appears to me to contain but a single proposition or undertaking, to wit: a guaranty on the part of Holbrook that the bond shall be worth $960 to the plaintiff and his then partner, at the end of two years from that date, which undertaking he agreed to perform so as to render the same effective in a particular manner; that is, by purchasing the bond if presented to him for that purpose on the day mentioned in the agreement, and paying therefor the amount he had covenanted it should then be worth. This construction, I think, is perfectly consistent with the probable design and intention of both parties. The obligors clearly desired nothing further than to receive

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$960 for their bond; for that is all they would be entitled to under either construction. The mere guaranty secured to them that, and the provision for the purchase of the instrument was therefore worthless to them. But it is. quite reasonable to suppose that Holbrook designed, at the time he signed the guaranty, to provide for his own safety against loss, by selling the bond to some one else, conditionally, during the two years which were to elapse before he was to pay for it, or' that he hoped to realize a profit from the sale of the bond at some future time, in case he should be compelled to purchase it; and it is difficult to believe that the parties designed to permit the obligees to deprive him of this very equitable right at their option, by retaining the bond in their own hands after they had received from him its full value. I am of opinion, therefore, that the contract signed by Holbrook must be considered as simply an agreement to purchase the bond at the price fixed, provided it should be presented to him for that purpose on the 7th of March, 1855 ; and that such presentation was necessary to entitle the plaintiff to recover against Holbrook or his personal representatives upon the contract.

In this view of the case, it is unnecessary to consider what would have been the duty of the plaintiff as obligee in a mere covenant of guaranty.

The verdict should, therefore, be set aside as contrary to evidence, and a new trial granted, with costs and costs of appeal.

Judgment for the plaintiff on the verdict.