Wright v. Johnson

8 Wend. 512 | N.Y. Sup. Ct. | 1832

By the Court, Nelson, J.

By the terms of the agreement, the defendant was surety or guarantor for Stickney for a loan of money to the extent of $200, to any person who would make the advance upon the terms mentioned in the agreement. It was said on the agreement that the defendant was the debtor of Stickney, and that the loan was to the defendant as principal, because, by the original agreement, he was to advance $350 to Stickney. But for aught that appears, he may have advanced that sum previous to giving the guaranty; and the fact of requiring Stickney’s interest in the con-lrac^ t0 be assigned as collateral security to the lender, as a condition upon which the defendant would be accountable, shews that the loan was Stickney’s, and not the defendant’s-Most clearly Stickney would be liable to the lender, and he could only be so as principal.

It has often been decided that sureties are bound only according to the strict letter or precise terms of their contract, 10 Johns. R 180, 5 T. R. 370, 2 Taunt. 206, and are considered as favorites of the law. Applying this principle to the declaration in this case, it is obviously defective. The plaintiff has not complied with the terms of the agreement or guaranty in any one particular. Instead of advancing money to Stickney, one of the conditions upon which the defendant agreed to become holden to pay, the plaintiff sets up an old account against him of $102, and an advance of goods, wares and merchandise for the residue of the consideration. Another condition was a credit to Stickney upon the advance of the money for 9 and 12 months. Even if the old account, and the subsequent sale of goods, were to be deemed money within the meaning of the guaranty, there is. no averment in the declaration that any credit was given. It is true that more than 12 months elapsed from the acceptance of the guaranty and the institution of this suit, but a voluntary delay on the part of the plain ciff is very different from an obligatory agreement to give credit for the 9 and 12 months. In Bacon v. Chesney, 2 Com. L. R. 352, the defendant engaged to guarantee an amount of goods to be supplied to one Blair on reasonable terms, at 18 months credit, and the guarantor was not called on till after the 18 months. Lord Ellenborough said the claim against a surety is strictissimi juris, and it is incumbent on the plaintiff to shew that the terms of the guaranty have been stricly complied with. If I engage to guarantee, provided 18 months credit be given, the party is not at liberty to give 12 months only, and after the expiration of six more, call upon me.

The case of Glyn et al. v. Hertel, 4 Com. L. R. 72, I consider decisive of this case. There the defendant sent to the plaintiffs the following guaranty : “May 19, 1825. I am at this moment returned from Clifton, and the post is just going. I have only time to say that I will be answerable for the extent of £5000 for the use of the house of Spitt & Molting & Co.” Upon the trial, it appeared that this guaranty was applied to the security of an account existing against the above house at. the time it was given, and to recover which account this suit was brought on the guaranty, the house having failed. It was held that the guaranty eontemplated/w¿Mre loans, and that the transaction did not amount to a loan of money so as to charge the defendant. Ch. J, Dallas, in giving the opinion of the court, recognizes the general rule as to sureties, that they can be liable only on the precise terms of their obligation, applying to it the strict construction of law, and says that the plain meaning of the thing, (the guaranty) and obvious course for the plaintiffs, would have been an advance of so much money, leaving past transaction^ as they were, to be liquidated and adjusted by other means. The facts, which are voluminous, disclose a much stronger case for the plaintiffs than the one under consideration. The reasons given by the judges for their decision in the case of Piddocket al. v. Hinton et al. 10 Com. L. R. 197, are applicable to this case.

There are other defects in the declaration, which I think are fatal, but I choose to put the decision upon the broad ground that here was not a compliance with the terms of the guaranty of the defendant, which upon well settled principles, discharges him.

Judgment for the defendant.