103 N.Y.S. 127 | N.Y. App. Div. | 1907
Lead Opinion
The plaintiffs were copartners engaged in manufacturing and selling cigarettes. The defendant was a stockholder and president of the Retail Cigar and Tobacco Dealers’ Association of Hew York, a domestic corporation. With a view to inducing the plaintiffs to give credit to his company, after negotiations between the parties, the defendant wrote, signed and delivered to the plaintiffs a guaranty as follows:
“Hew York, April 29th, ’05.
“ Messrs. Schinasi Bros.,
“ Present:
“ Dear Sirs.— I hereby guarantee any bills the Retail Cigar and Tobacco Dealers’ Association of Hew York may contract with yon from this date, until January 1st,-1906, unless I notify you to the contrary, providing the amount of credit shall not exceed $5,000.00 at any one time.
“ Respectfully,
“ (Signed) ROBERT E. LAHE.”
Prior to the giving of the guaranty the plaintiffs had sold the company cigarettes on credit. After the execution and delivery of the guaranty and prior to the 1st day of January, 1906, the total credit extended to the defendant by the plaintiffs at times exceeded $5,000, but no single sale aggregated that sum. On the 2d day of January, 1906, there was due and owing to the plaintiffs from the company for merchandise sold and delivered to the company on the faith and credit of the guaranty the sum of $3,200.67. The plaintiffs have recovered in full that amount together with interest.
The learned counsel for the appellant insists that the defendant is relieved from liability on the guaranty merely because at differ
It follows that the judgment should be affirmed, with costs.
Patterson, ' P. J.,'Houghton and Lambert, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
The defendant’s contract was to guarantee “ any bills the Retail Cigar and Tobacco Dealers’ Association of Hew York may contract” with the plaintiffs from April 29, 1905, to January 1, 1906, with a proviso that the amount of credit should not exceed $5,000 at any one time. I think the defendant had the right to impose conditions upon which his liability should depend, and it seems to me that he did impose as a condition that the credit extended to the association should not exceed $5,000. . It is not a limit of the amount of guaranty, but a condition upon which the guaranty is to be effected. The evidence is that on January 6, 1906, the total credit extended to the association was $5,200.67. Subsequently, on January 10,1906, the association paid $2,000 on account, but the condition upon which the defendant was willing to guarantee the payment of bills of the association was broken by the plaintiffs extending credit to an amount exceeding $5,000, and I think the defendant was relieved from liability.
The case of Farmers & Mechanics' Bank v. Evans (4 Barb. 487) is in point, and what was said in that case I think applies here: “ It appears to me that the defendant intended to restrict the whole amount of the indebtedness of I & K at any one time, to the plaintiffs, to $5,000. He contemplated that I & K would from time to time require money in their business, and he was willing to become responsible for any sums which the plaintiffs should loan them, provided the whole amount should not at any one time exceed $5,Q00. He was unwilling to become surety for I & K to the extent of $5,000 in case they were permitted to incur a larger debt at the bank. He may have had good reason for inrposing this restriction. There are many men very competent to manage a small business successfully, who, when their business is extended, and large liabilities are incurred, become entirely incompetent to its
In the cases relied on by the plaintiffs the terms of the guaranty were different, and I do not think they are in point.I think the judgment should be reversed.
Judgment affirmed, with costs. Order filed.