Stafford v. Low, 16 Johns. 67

Stafford v. Low

16 Johns. 67 | N.Y. Sup. Ct. | 1819

Spencer, J. delivered the opinion of the Court.

Two questions have been made: 1. Whether the defendant’s ■ letter was, in itself, a guaranty for the goods subsequently furnished by the plaintiffs; 2. Whether the defendant was bound to give his guaranty when called on for that purpose ? All the law upon this subject will be found collected in a very able note by Mr. Wheaton, in his 3d vol. of Reports, (page 148,)(a) The case of M lver v. Richardson, (1 M. Selw. 557.) is directly to the point, that, the defendant’s letter did not amount to a guaranty. In that case, the defendant, after giving the strongest assurances to the plaintiff of the probity and. honour of the persons recommended, and saying he would be perfectly safe in crediting them to the amount requested, added, “ indeed, I have no objection to guaranty you against any .loss from giving them this » credit.” The Court of K. B. considered this as a proposition leading to a guaranty; that the words imported, that if application were made, he would guaranty; and that, considering it as an overture to guaranty, the defendant ought to have had notice (which he had not until nine or ten months after the date of his letter) that it was so regarded, and was meant to be accepted, or a subsequent consent on the part of the. defendant, to convert it into a conclusive guaranty.

The defendant’s letter, in this case, is not so strong as that in the case cited.. He says, “ if, after the explanation, they should require his individual guaranty, he should have no objections to give them that pledge.” They did not re- ■ *70quire it, until after a lapse of more than two years, when ^ ¿efen¿ant had every reason to believe they had given up the idea of his guaranty, and when he had lost all means protecting himself. The defendant’s engagement is conditional, dependent on the plaintiffs being dissatisfied with the security of the corporation; and as they never manifested to the defendant their dissatisfaction with that security, the inference is, that they were satisfied, and did not mean to avail themselves of the defendant’s conditional offer.

Judgment of nonsuit.

As to the point, that mere delay in calling on the principal, will not discharge the surety, in addition to the cases cited by Mr. Wheaton, vide Sir JYm. Scott, in thfc Vreedet 1 Dod. Adm. Rep, 1—7, 8. Orme v. Young, l Holt's N.P. Rep. 84