51 N.Y.S. 205 | N.Y. App. Div. | 1898
This action was brought on the following guaranty:
“ In consideration of One dollar, and other good and sufficient consideration to me in hand paid, at and before the execution and sealing of this instrument, the receipt whereof is hereby acknowledged, I, Francis A. Fitzelle, of 26 Forth Broadway, Yonkers, F. Y., .do hereby become bound to Picker Bros., of 26 Warburton avenue, said Yonkers, and agree to pay to them for all such goods and
“ Dated Yonkers, N. Y., December 1&th, 1895.
“FRANCIS A. FITZELLE. [seal.]”
There was but one issue in controversy, and that was the proper construction of this guaranty, the defendant contending that it was exhausted when the plaintiffs had sold Cornelius Fitzelle goods to the amount of $182.22, while the plaintiffs claimed that it was a continuing guaranty, the amount specified being a limitation only on the extent of the defendant’s responsibility. The court submitted the-construction of this guaranty to the jury for determination, who found in favor of the defendant. Thereafter, on the plaintiffs’ motion, the verdict was set. aside and-a new trial granted, from which order this appeal is taken. Even if evidence of the circumstances and situation of the parties was competent on the construction of the instrument, still the question of that construction was for the court, and not for the jury. (Tumbridge v. Read, 2 Silv. Ct. App. 39; Edall v. New Eriglamd R. R. Co., 18 App. Div. 216.) However, had the jury decided the question correctly no harm would have been done; but in our opinion its decision was wrong. Had the instrument ended at the figures $182.22, we are inclined' to the opinion that even then, under'a long line of authorities, the amount specified would have been a limitation only On the defendant’s liability and not on the amount of goods which the plaintiffs might sell. (Gates v. McKee, 13 N. Y. 232; Rindge v. Judson, 24 id. 64; City Nat. Bank of Poughkeepsie v. Phelps, 86 id. 484.) But the further provision “ the same to be a running account for an indefinite time, arid such deliveries be at such times as said Cornelius shall desire,” puts the question beyond reasonable doubt. A running account necessarily contemplates continuous dealing, and .this intention is further emphasized by the provision that the account
The order appealed from should be affirmed, with costs.
All concurred.
Order granting new trial affirmed, with costs.