50 N.Y.S. 419 | N.Y. App. Div. | 1898
■ This is an action' Upon a continuing guaranty, whereby the defendant, for the period of six months from .the 15th day of November, 1895, guaranteed the payment by one White of ’ all goods sold to him by the plaintiff, not exceeding in the aggregate $500. It is averred in the Complaint,, and the averment is specifically admitted in the answer; that between the 15th day of November, 1895, and the 16th day of April, 1896, the plaintiff sold and delivered to White, on the faith of the' guaranty, $500 worth of goods ; and that this sum is due to the plaintiff by White. The defendant, after making this admission, alleges that,, on the 16th day of April,
There was an additional error, doubtless the result of oversight, with regard to the balance due by White over and above the amount of these notes. The defendant in. her answer concedes that; over and above all payments, there is a balance of $123.60 due by White to the plaintiff. The plaintiff claims that the balance was larger. Whatever it was, as matter of fact, the plaintiff was -entitled to it, whéther the defendant consented to the acceptance of the notes or ■ not. As was said in Lowman v. Yates (37 N. Y. 606): “ The receipt of the notes could have no greater effect than a payment of money.” At - most, therefore, the taking of these notes for a less amount than the sum due “ could at most but operate as a discharge of -the surety to the amount of the notes, and left her unaffected as to the remainder.”
The respondent does not seriously contest these positions. She asks an affirmance principally upon the ground that the plaintiff, in his complaint averred that the consideration of the guaranty was that, “ at the reguest of the defendcuntf he would sell goods, to White; and that this request was not proved. This point is frivolous. The guaranty itself imports the request. But whether it does or not, the expression “ at the request of. the defendant ” is surplusage. The real consideration is expressed in the “ promise in writing” referred to in the complaint—that is, in the instrument itself.
Mone of the other points made by the respondent are worthy of special consideration. They are all trivial. Upon the case as it. stood when the nonsuit was granted the plaintiff was clearly entitled' ■ to a -verdict for the full sum of $500.
The judgment should, therefore, be reversed, and a new trial, ordered, with costs to appellant to abide event.
Van Beunt, P. J., Rumsey, O’Brien and In&raham, JJ., ■ concurred. '
Judgment reversed, new trial ordered, costs to appellant to, abide event.