128 N.E. 123 | NY | 1920
A guaranty in the following form is the subject of this action:
"ROME, N.Y., Oct. 31, 1914.
"DEAR SIRS. — Enclosed find check for the three above bills. Please do not send my statements and my son's *170 statements together. Send him his and me mine. They do business for themself (sic), and therefore send them separate statements, but I am good for what they buy.
"Yours truly, "B. SILVERSTEIN."
The defendant, the signer of this guaranty, is a merchant in Rome, N.Y. Two sons, Louis and Moses, are merchants in Oneida and Little Falls, respectively. The former began business in April, 1914; the latter in July. A salesman in the plaintiff's service visited the defendant in May of the same year. The defendant then stated that he would be good for any sales that the plaintiff might make to Louis. Moses, not being yet in business, was not included in the promise. The plaintiff made sales to Louis, charging them at first to the defendant. It made sales later to Moses, charging them to him directly. In October, 1914, the defendant, dissatisfied with the form of the accounts, wrote the letter already quoted. The plaintiff interpreted this letter as a guaranty of sales to Moses, and gave credit on that basis. Default in payment followed, and in turn was followed by this action. The trial judge found the contract ambiguous, and left its meaning to the jury. The Appellate Division reversed, and dismissed the complaint.
We find ourselves in accord with the ruling at the trial (Utica City Nat. Bank v. Gunn,
No question of the Statute of Frauds is in the case. That statute was neither urged nor pleaded. No question of the meaning of the promise "to be good for" purchases is here. The defendant's answer admits that the promise was a guaranty of payment. Some point is made that the guaranty was without consideration. Whether it was intended to induce credit, and whether credit was given on the faith of it, were questions of fact, which were disposed of by the jury.
We find no error in the rulings upon evidence. If there was any error in the charge, it is not, we think, *172 so substantial that it could have affected the result (Code Civ. Pro. § 1317).
The judgment of the Appellate Division should be reversed, and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.
HISCOCK, Ch. J., CHASE, HOGAN, McLAUGHLIN, CRANE and ELKUS, JJ., concur.
Judgment reversed, etc.