56 N.Y.S. 538 | N.Y. App. Div. | 1899
■ On the 26th. day of November, 1894, the Fairfield Copper Company delivered to the plaintiff its bond in the penal sum of $26,250, conditioned for the payment by it to the plaintiff of $25,000 on or before January 1, 1896. The defendants, by an instrument under seal delivered at the same time, agreed to pay to plaintiff all ■damages it might sustain by reason of the failure of the obligor in the bond to pay it. The bond was not paid, and plaintiff has sued the guarantors, and recovered a judgment against them for the amount of the bond and interest, and the defendants appeal.
' When the bond was given, there was made between the plaintiff and the Fairfield Copper Company an agreement by which the plaintiff agreed to advance to the Fairfield Company $25,000, for which the bond was to be made, and the bond recited the advance of that sum which was the consideration for the giving of the bond. The defendants claim that this sum was not advanced to the Fairfield ■Company, and they say that the failure to advance it is such a material modification. of the contract between the principal parties that the guarantors are discharged by it. The facts are not disputed. Before the making of the agreement and bond of Novémber 26, 1894, the parties had been negotiating for the loan of this money by plaintiff to the Fairfield Copper Company, and one Wood had advanced to that company $3,000 in expectation that the loan would be made. Whether this was known to the guarantors who were ■officers of the Fairfield Copper Company is disputed, but it is not material in the view we take of this case. At the time the bond was executed plaintiff paid to the obligor $18,000. Four thousand -dollars was paid on the draft of the Fairfield Copper Company, made a few days later. Wood was indebted to the plaintiff toan amount greater than $3,000 and the plaintiff, by arrangement with
It is not claimed that this sum of $25,000 was lent for any specific purpose. It was to be used by the Fairfield Company for such purposes as its necessities required. One of these necessities-was the payment of- this debt of $3,000 to Wood.' If the Fairfield Company had received from plaintiff on November 26, 1894, its-check for .$3,000 which that company had at once delivered tO' Wood in payment of his debt, even a guarantor would admit that the-transaction was an advance of money such as would satisfy this contract. But this was the same thing in substance. It was not even in point of fact a modification of the agreement between the principal parties, but the contract they made was carried out. The manner of carrying it out avoided a useless transfer of money from the plaintiff to the Fairfield Company, and from it to Wood, but in effect it was a complete performance by the plaintiff of the contract to advance the $25,000 in cash, which means here a present advance of money to be used as distinguished from an advance by way of notes or something, to become available in the future. We think,, therefore, that there was no modification of the contract of the principals, and that the defendants as guarantors are liable.
It is not intended to decide that a variation of the manner of performance of the agreement to lend $25,000 .agreed on between
The judgment should be affirmed, with costs.
Ván Brunt, P. J., Barrett, Patterson and Ingraham, JJ., concurred.
Judgment affirmed, with costs.