Gutta Percha & Rubber Manufacturing Co v. Benedict — 37 N.Y. Super. Ct. 430

Majority

p. 430

THE GUTTA PERCHA AND RUBBER MANUFACTURING COMPANY, Plaintiff and Respondent, v. Lewis S. BENEDICT, et. al., Dependants and Appellants.

Headnote

The defendants sold goods for the plaintiff under a contract “to guarantee the payment for all goods sold by them, and for the full amounts for which said goods should be sold.

The plaintiffs claim to recover the amounts of the respective sales made by defendants, with interest, from the time the same became drae.

Defendants deny their liability to pay any interest on the amounts of sales.

Held, that defendants were liable to pay interest on the amounts of the respective sales from the time they became due and payable to them, that being the time at which they, as guarantors, became liable to pay on their contract.

Before Freedman and Sedgwick, JJ.

Decided June 1, 1874.

p. 431

Appeal from a judgment.

In 1867 the defendants entered into an agreement with the plaintiff, whereby they agreed to undertake the business of manufacturing and selling plaintiff’s good for a commission of fifteen per cent, upon the goods manufactured and sold by them, and “to guarantee, and they did thereby guarantee the payment for all goods sold by them, and for the full amounts for which said goods should be sold.”

While thus acting as agents for the plaintiff, the defendants sol'd the goods mentioned in the complaint to which it is admitted their guaranty attached.

Upon the trial it was admitted that the defendants are liable for the price of the goods so sold as guarantors, but it was insisted that they are not liable for the interest.

The defendants’ counsel offered to allow a verdict to be taken for the items referred to in the complaint, without interest, but insisted, and asked the court to instruct the jury that the plaintiff was not entitled to interest. The court refused so to hold, rulé, or instruct the jury, and defendants excepted.

The court then ordered a verdict for the full amount claimed, including interest, and the defendants’ counsel excepted.

The jury rendered a verdict for the sum of one thousand seven hundred and thirty-eight dollars and sixty-four cents, being the amount of principal and interest as claimed in the complaint.

Defendants’ counsel moved to set aside the verdict upon the exceptions and minutes, and the court denied the motion, .and ordered judgment' for the plaintiff upon the verdict.

Judgment having been entered upon the verdict, the defendant, Torrey, appealed therefrom.

p. 432

Barrett, Redjteld & Hill, for appellants.

T. D. Felton, for respondent.

The appeal being from the judgment only, the only question we are called upon to determine is the liability of the appellant for interest upon the amounts guaranteed. His offer to allow a verdict to be taken for the items referred to in the complaint, without interest, was an admission that such items were correctly charged. The sale to the corporation of the town of Sumter was pleaded to have been a sale for cash, and as such, in the absence of proof that in point of fact it involved a credit, as to which the burden was on the defendants, it created an immediate liability. The salé of goods for which, without the knowledge or consent of the plaintiff, notes were taken, created a liability for the several amounts of said notes at and from the time of their maturity. Ho reason has been shown why interest should not run from the time at which the defendants as guarantors became liable to pay. Their liability attached the instant there was a default of the principals, and such liability is commensurate with that of the principals. Besides, the moment the defendants made default, they became themselves chargeable with interest. Brainard v. Jones, 18 N. Y. 36 , is an authority upon this point.

The judgment should be affirmed, with costs.

Sedgwick, J., concurred.