166 A. 909 | Pa. | 1933
Argued April 20, 1933. Plaintiff, a finance company, began this action of assumpsit to recover the sum of $3,961.89 upon a contract whereby the defendant, F. H. Foley, became the guarantor of certain obligations of the Foley Chevrolet Company (a corporation in which the defendant was financially interested) to the plaintiff.* *480
It was averred in the statement of claim that the Foley Chevrolet Company had defaulted in the payments of rent for the premises which it occupied; that its landlord thereupon caused the personal property on the premises, including 25 automobiles belonging to the plaintiff, to be levied upon under a warrant of distress; that plaintiff, by a writ of replevin, obtained possession of the autombiles; that the action of replevin was settled by an agreement between the landlord and the plaintiff, whereby the latter paid the landlord $3,500 of the rent due by the Foley Chevrolet Company, in consideration of being released by the landlord from liability under its replevin bond; and that defendant was, under his guaranty contract, liable for this sum, together with the attorney's fees and costs of the replevin action (including the premium upon the replevin bond). Defendant filed an affidavit of defense in the nature of a demurrer, raising the legal question that the contract of guaranty does not cover the alleged liability of the Foley Chevrolet Company to the plaintiff under the facts set forth in the statement of claim. The court below sustained the affidavit of defense, and entered judgment for defendant. Plaintiff appealed.
Before we consider the principal question involved in *481
this case, one preliminary matter requires discussion. It was provided by the contract that "This guaranty and the performance thereunder shall be construed and determined according to the law of the State of New York." However, no allegation is to be found in the pleadings stating the law of New York relating to the construction of such a contract. We shall, therefore, presume the law of our sister state on this subject to be the same as that of Pennsylvania. If the name of the state be changed, the words of Judge PORTER in Cape May Real Estate Co. v. Henderson,
We are of opinion that the learned court below was clearly right in upholding defendant's contention that under the language of his contract with plaintiff, he is not liable for the expense incurred by the plaintiff in recovering the automobiles seized by the landlord. All the words and expressions in the agreement referring to liabilities expressly guaranteed by the defendant relate to some form of credit transaction, such as drafts, notes, acceptances, and negotiable instruments, or to some action connected therewith, such as issuing, accepting, endorsing, *482
discounting, and purchasing. When, therefore, to the specifically enumerated classes of instruments is added the general expression, "agreements and other obligations," these general words must be construed, under the familiar rule of ejusdem generis, as referring to some form of credit transaction similar to those specifically named: Cleveland
Western Coal Co. v. Cyclops Steel Co.,
Plaintiff's counsel states in his brief that the automobiles were in the possession of the Chevrolet Company under a trust receipt with promissory notes attached, and that by the landlord's seizure there was a breach of the agreement whereby the Chevrolet Company had possession. From this he argues that defendant is liable for plaintiff's loss by reason of the breach of the Chevrolet Company's agreement. We find no basis for this contention in the record. Except in plaintiff's brief, there is no mention of any agreement relative to the automobiles seized. In the words of the learned court below, "There is nothing in the statement of claim showing how the automobiles came to be on the premises of the Chevrolet Company, or what the 'obligation' or 'agreement' was in regard to them. All we know is that automobiles belonging to the plaintiff were on the premises of the Chevrolet Company, that this company did not pay the rent to its landlord, that the latter levied a distress for the rent in arrear and seized the automobiles in question."
Judgment affirmed.
"This is a contract of continuing guaranty and, until cancelled as hereinafter provided, shall not be limited to any amount, and shall at all times include the full indebtedness of the said Dealer to the said Corporation.
"This guaranty and the performance thereunder shall be construed and determined according to the law of the State of New York."