38 N.Y.S. 597 | N.Y. Sup. Ct. | 1896
The defendant is a surety, and' the limit of his liability must be ascertained from the terms of the written undertaking. He assumed a burden -without .sharing in the benefits óf the subject of the contract, and, therefore, had the right to prescribe the exact terms upon which he entered into the obligation,—,to limit his liability either as to time, amount, or parties,— and,, having done this, he has a right to insist on his discharge from legal liability in case the terms imposed have not been observed. The meaning of the language used in the contract of guaranty is both clear and ascertained, and'the defendant is- entitled to the' application of a strict rule of construction. His liability depends iipon whether or not the plaintiffs- have, without his assent, done anything, either directly or by necessary implication, which maybe said to have varied the terms of the principal- contract for which he stood sponsor.- If.the plaintiffs have so far-departed from!- the ' terms of the original agreement by giving terms of credit not contemplated by the terms of the contract, then the defendant,' • even thóugh he may have sustained no injury thereby, will be-relieved from liability. By the terms of the ..undertaking, the defendant guaranteed the payment of all bills for coal, to the amount .of- $1,5.00 per month. The shipment of coal, the-.render-'
. By the terms of this condition we axe brought to the only question urged by the defendant in exoneration of liability: Did the taking of the debtor’s notes for the bill rendered for coal, and the renewals thereof, for balances remaining unpaid, from time to time, without the consent of the surety, discharge him from liability? If the giving of these notes, from time to time, suspended the plaintiffs’ right of action against Harwood & Irish for any given period, that would be such a departure from the terms of the defendant’s undertaking as would discharge him from liability. Dorlon v. Christie, 39 Barb. 610; Delaware, etc., Railroad. Co. v. Burkhard, 36 Hun, 57; Place v. McIlvain, 38 N. Y. 96; Parmelee v. Thompson, 45 id. 58; Hubbard v. Gurney, 64 id. 458; Auburn City N. Bank v. Hunsiker, 72 id. 252; Jagger Iron Co. v. Walker, 76 id. 521; Van Giessen v. Bridgford, 83 id. 348; City Nat. Bank v. Phelps, 86 id. 484.
Many of the cases cited hold that the giving and acceptance of the debtor’s note, due in the future, have the legal effect to extend the term of credit of the original indebtedness, and bar a right of action thereon during such period; while the cases of Parmelee v. Thompson, supra, and Graham v. Negus, 55 Hun, 440, decide that the mere acceptance of a note of the debtor, representing a pre-existing debt, in the absence of- an express agreement that the same be taken in extinguishment of the original debt, or any new consideration for the acceptance of the note, does not operate as an extension of the term of payment so as to bar a right of action thereon. Hndoubtedly, the rule that the taking of the note for a pre-existing debt, or as. a substitute therefor, operates as an extension of time, must have its foundation in contract, express or implied from the transaction, and this seems to be the doctrine of all the cases. The conflict arises upon the consideration of what constitutes- a valid contract for the extension or substitution. We see no substantial reason why the taking of a note or written obligation of the debtor for the amount, and as a representative of the debt, conditioned for future payment, should not give rise to the presumption that the same was given and accepted pursuant to an agreement that the time of the. enforcement of the collection of such debt be postponed until the maturity of such
Assuming the inference of'contractual relation from the transaction of the delivery and acceptance of the note-or obligation of the debtor, the reason then assigned to defeat the validity of such a contract, by some of the cases cited, is that there is an absence of present consideration to support it; that, in giving such a note or obligation, there is wanting the resulting benefit- or disadvantage essential in the law to support a promise.- In this conclusion we are unable to agree. While the debtor might be made liable for the debt under prior contract relations, he could' not be compelled to acknowledge his indebtedness by a higher grade of evidence such as is furnished by a written obligation. In this the creditor might be benefited. Again, the availability of a negotiable note-over that of an ordinary debt for -sale or discount must be considered an advantage to the creditor. It is not essential to the Validity of a promise that the advantage to the party for whose benefit the promise is made should be equal to the benefit or injury to. be sustained by the other. ■ It is sufficient that an advantage or benefit is to be derived by the party who is .the recipient of such promise. Kegardless of these considerations, if the case of Place v. McIlvain, supra, is to be followed, the acceptance and retention of the notes given by Harwood & Irish to the plaintiffs would operate as an extension of credit of the debt that would be effectual to discharge the surety. Certainly, under the case last cited, the drawing of the draft at three, days’ sight by the plaintiffs, and the acceptance thereof by Harwood & Irish, had the ' effect to bar the right of action upon the original debt until de-. fault in the payment of the draft.
The complaint in this case should be dismissed..
Complaint dismissed.
