Friedlander v. New York Plate Glass Insurance

56 N.Y.S. 583 | N.Y. App. Div. | 1899

Patterson, J. :

From a judgment entered upon a dismissal of the complaint in an action brought upon a written guaranty this appeal is taken. On the 25th of February, 1896, the defendant, a corporation, delivered to the firm of Friedlander & Greene, of which the plaintiff was a member, a letter signed by the secretary of the defendant, in which it was stated that the defendant would guarantee, to the extent of $1,500, the payment of bills for glass that should be bought by one Edelman from the firm mentioned. It was shown- upon the trial that the letter of guaranty was lost, and its contents were proven orally. It appeared in evidence that the firm of Friedlander & Greene was dissolved on the-18th day of March, 1896. Friedlander sues in his individual right, and in the complaint it is alleged that between the 25th of February and the 27th of July, 1896, in reliance upon the defendant’s guaranty, the plaintiff sold and delivered to Edelman plate and other glass to a large amount, and that on the day last named there was a balance- remaining due of $1,922.77, which Edelman had neglected to pay after demand, and that, therefore, the defendant was liable upon its guaranty to the full amount thereof. On the trial the court allowed the plaintiff to amend his complaint by inserting an allegation that upon the dissolution of the firm of Friedlander & Greene the guaranty was assigned to the plaintiff. It is not seriously insisted on this appeal that any right was acquired by Friedlander under the assignment of this guaranty. Obviously it was not assignable. From its terms, as disclosed in the evidence, it was a direct guaranty of the defendant corporation to the firm of Friedlander & Greene. There was nothing which made it either assignable, or negotiable or transferable. The liability of a guarantor is sGietissimi juris, which means that it shall not extend beyond the precise stipulations of the guaranty. (Smith v. Molleson, 148 N. Y. 241.) The trial judge dismissed the complaint, evidently, on the ground that inasmuch as the contract was made with Friedlander & Greene it did not extend to the merchandise sold by Friedlander to Edelman after the dissolution of the firm of Fried- . lander & Greene on the 18th of March, 1896, and, therefore, could not be made to cover the balance which was due on Edelman’s account with that firm in July, 1896. The ruling of the court in this regard was right. The dissolution of the firm discharged the defendant’s further liability on the guaranty, (Penoyer v. Watson, 16 Johns. 100.) The case cited was decided on what was held in Meyers v. Edge (7 Term Rep. 250), and Spencer, J., says, referring to that case, “ There, a letter of credit was directed to the house of A. B. & Co., promising to pay for goods to be furnished to D. The goods were furnished after A., one of the partners, had withdrawn from the partnership and the guarantor was held not to be liable.

' This court has recognized the law of that case in Walsh & Beekman v. Bailie (10 Johns. Rep. 180), and in Robbins v. Bingham (4 Johns. Rep. 476) we held that the surety could not be bound beyond the scope of his engagement.” .

The case of Penoyer v. Watson (supra) is frequently, referred, to as authority, but it is claimed that the proof in the record before us shows peculiar circumstances which render the rule announced in that case inapplicable here. For instance, it is said that after the dissolution of the firm, and while Edelman was purchasing goods of Friedlander, there was a correspondence between the latter and the defendant concerning the extent and obligation of this guaranty, but it will be observed that all that correspondence emanating from the plaintiff is signed “ Friedlander & Greene,” and the defendant’s answers are directed to “ Friedlander & Greene,” down to as late a date as July 30, 1896. There is nothing in that correspondence making the guaranty individual as tó Friedlander. It is also claimed by the plaintiff that in certain conversations with one' Danziger, the president, and White, the secretary, those persons in some way recognized or admitted the guaranty as one running in favor of Friedlander individually. But the liability sought to. be enforced here is a corporate liability. Neither of these persons had a right to extend by parol that guaranty beyond its terms so as to vary an obligation binding upon the defendant. They could not make a new guaranty by parol, for that would have been contrary to the statute; they could not extend the terms of the original guaranty by parol, nor could their declarations raise an estoppel against the corporation by reason of the nature of the contract.

This is not to be confounded with that class of cases in which it has been held that when, at the time of the execution of a written guaranty, it is within the intention of the parties that it shall be in favor of some one not specifically named or mis-described in the writing, it may be enforced by such unnamed person. That was' the case in Beakes v. Da Cunha (126 N. Y. 296) which distinguished Barns v. Barrow (61 id. 39). In the ease before us, the defendant’s obligation was expressly to the copartnership ; that, copartnership was dissolved.and with that dissolution the operation of the guaranty ended. It was not assignable nor transferable, and no new right based Upon it in favor of the plaintiff as against the-defendant was created.

The judgment appealed from must be affirmed, with cost's.

Rumsey, O’Brien and Ingraham, JJ., concurred ; Yan Brunt, P. J., concurred in result.

Judgment affirmed, with costs.