38 N.Y.S. 16 | N.Y. App. Div. | 1896
On the 15th day of October, 1891, the plaintiff entered into a contract with, one Hattie P. Root, by James IT. Root, her agent, by which, among other things, the plaintiff contracted to give to Mrs. Root the sole agency for the sale of the total output of the Ben Carbon Colliery, “ at all points along the line of the New York, Lake Erie and Western Railroad Company, its branches and connections.” The plaintiff further agreed to fill all orders for coal sold by said party of the second part or her agents, to any person or persons on the line of the said New York, Lake Erie and Western railroad, or its branches or connections, at prices stated in the contract.
The contract further provided that Mrs. Root agreed to employ James H. Root as her agent in selling the coal, and to give to the plaintiff a written guaranty of the defendant here, in the sum of $5,000 for the faithful performance by James H. Root, “agent of said party of the second part, of her agreements above set forth.” This contract was delivered on the day of its date. Two days before that time the defendant had executed the guaranty on which this action is brought, and which is in the following words: “ In consideration of the sum of one dollar to me in hand paid, and other good and valuable considerations me thereunto moving, I hereby guarantee to Charles Hutchinson, of .Carbondale, Pa., the payment by James H. Root, of New York city, as agent for Hattie P. Root, of all sums up to five thousand dollars ($5,000), which may become due and owing from said Root, as agent, on account of coal of the Ben ■Carbon Colliery, which may be sold to or by said agent.”
The action was tried before a referee and judgment was directed to be entered for the plaintiff in the amount claimed. From. that, judgment the plaintiff takes this appeal.
The serious question presented by the record in its present condition turns upon the construction to be given to the contract of guaranty upon which the action was brought. The contract of guaranty was. dated on the 13th of October, 1891. It'was under seal, and it-expressed a consideration. It did not refer to the contract between Hattie Root and the plaintiff; indeed, it could not do so, as at the-time it wa's executed that contract had not been made. The referee-has found that this'agreement of guaranty was a part of the consideration given to the plaintiff at the time of making the contract'with. Hattie Root, but he has not found that at the time of the execution of this guaranty by the defendant, the provisions of the contract to-be made between plaintiff and Hattie Root were made known to her or that she had in view any particular contract, or that any'special provisions should be put into the contract which she intended to-guarantee. Neither does he find that this guaranty was given solely to secure the performance of the contract of October fifteenth, nor can there be any presumption that such was the case. The facts-do not show any of the circumstances which were presented to the-. defendant at the time of the making of this guaranty, and for that, reason it must be construed upon the words of the guaranty itself.. The rule with regard to the. construction of such contracts is, that.' the court will ascertain the intention of the parties to them in the-same manner as that intention is ascertained with regard to any other contract.. But when the intention of the parties is ascertained, /the guarantor is entitled to have the contract thus construed, strictly applied, -and its meaning cannot be. extended to charge him. upon it. (Schwartz v. Hyman, 107 N. Y. 562, 565; Evansville Nat. Bank v. Kaufmann, 93 id. 273.) Applying that rule, we-must examine the guaranty itself to ascertain the extent of the-defendant’s liability. When we turn to that paper we meet with- no-difficulty whatever. Upon a sufficient consideration, she guarantees.
But if it is to be said that the guaranty which was given was a part of the consideration of the contract between Hattie P. Root and the plaintiff, set out in the complaint, and was to be confined to coal delivered under that contract, even yet the conclusion of the referee cannot be overthrown. That contract by its terms gave to Hattie Root the sole agency for the sale of the total output of the plaintiff’s colliery at all points along the line of the New York, Lake Erie and Western Railroad Company," its branches and connections, and by it Hutchinson agreed in terms to fill all orders for coal sold by or to Mrs. Root or her agents to any person upon the liné of that railroad, or its branches or connections, at prices therein stated. íhepe words are not at all ambiguous, nor do they require any construction. When it is made to appear that any particular place is upon the line of that railroad or its branches or connections, so that coal shipped upon that road may be taken by the road to that place, the coal thus shipped is within the terms of this contract. It was made to appear in the case, and was not contradicted, that not only was Weehawken one of the termini of the Erie railroad, but that the coal docks there, upon which large quantities of this coal were delivered, were leased by and under the control of that railroad. When this appeared, it necessarily followed that the coal delivered at that place upon the order of James H. Root, as agent, was within the terms of the contract and was protected by the guaranty.
There was no case made for the admission of paroi evidence to explain these words as used in this contract, except so far as it might have been necessary to show that any given place was situated on the line of that road. Parol evidence is admissible to explain the meaning of words when the words are susceptible of two constructions, in which case evidence may be given of the facts and circumstances which surrounded' the transaction so that the court can put
It is complained by the defendant that no verified statements of the amount of coal sold to Root as agent were furnished to show the amounts remaining due and unpaid for coal. But that fact is of no' importance here. Such statements were not to be furnished to her, and the provision was clearly one with which the guarantor had ■nothing to do. There is no dispute with regard to the amount of coal sold. She herself stipulated it in this action, and it appears, and is not disputed, that the parties to the original contract adjusted the amounts sold and the amounts in which Root was liable as agent, without any request for a verified statement. This provision of the contract was, therefore, waived by the parties to it, as it might have been, and the fact that they were not delivered cannot be insisted upon by the defendant here.
We have examined the various exceptions taken by the defendant to the rulings of the referee. While some of the evidence might ■ very properly have been admitted in mew of the claims which were presented upon the trial, yet the evidence if given could not have affected the result in the view which we take of the construction of this guaranty.-
For that reason none of these exceptions call for reversal of this judgment.
Our conclusion is that the judgment must be affirmed, with costs.
Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred..
Judgment affirmed, with costs.