Gurley v. Frieder

Woodward, J.: On the 27th day of February, 1893, the defendant in this action delivered to the plaintiff a written'guaranty, of which the following is a copy: “ George B. Gurley, “Manufacturers’ Agent, ■“Elastic Webbings, 107 Franklin St., Kew York. . “ Eel. 27#A, ’93. “ George B. Gurley, Esq.— I hereby guarantee the payment of $300.00 sold on your usual' terms to my Brother Adolph Frieder; and in the event he does not pay his bills when due to this extent, I pledge myself to pay them. Very truly, “W. FRIEDER. “ Tenris 3%, 30 days. All bills payable at maturity.” On the 17th day-of June, 1897,-the attorneys for the parties in this action entered into a stipulation that the goods were sold to Adolph Frieder by the plaintiff, and that there was then due the sum of $213ffi8, “subject, however, to the objection to be made by the defendant on the trial of this action that it is immaterial and irrelevant how many goods were sold by the • plaintiff to the said Adolph Frieder since the making of the said guarantee mentioned in the complaint, dated the 27th day of February, 1893.” The defense interposed was a general denial of the -guaranty in so far as it affected the sales of goods made in the latter part of 1895, on the grounds that the guaranty set forth in - the pleadings was for a particular bill. of goods ordered at the time of the issuing qf the same, and that it did not extend to the subsequent purchases. On the- trial of the action it was sought to prove that the goods were not sold in compliance with the terms of the. agreement, in [502] that no discounts had been-allowed, and that the terms of the sales were different from those set forth in the guaranty, some of the bills rendered having certain items marked “ net,” while others w-ere marked “ 3% 10th fol. mo.,” etc. The learned trial justice submitted to the jury .the question of fact, whether the goods were sold to the said Adolph Frieder in accordance with the'terms, of.the guaranty. In charging the jury, after setting forth the agreement and concluding as a matter of law that the guaranty was a continuing guaranty to pay the defendant’s brother’s debts to the extent of $300, where such debts were contracted with the plaintiff under the terms of the guaranty, the court says ; “ Row, they having made that agreement, the law required that Mr. Gurley should - limit his credit to the terms of that guarantee, if it is sought to hold the guarantor responsible. He could not give a credit of sixty days, during which period he would be unable to- sue, and during which period the guarantor would be unable to pay the bill and to 'sue his brother for it, and hold under this guarantee, and, therefore, I say ■to you, that the recovery in this case must be limited to the goods unpaid for, which were sold on the strength of that guarantee which, as I understand it, has never been revoked, and only what were sold for the period of time allowed under the guarantee, thirty days’ credit. You will take this testimony and these bills, and ascertain what amount that is. If there is none, the verdict will be for the defendant. If they were all sold on those terms, the verdict will be for the plaintiff for the full amount, $264.24, and if there were any sold under the guarantee, arid on the terms of credit as provided for here, your verdict will be limited to that amount only, instead of $264.24. If you reduce the amount, of course you reduce the amount of interest proportionately. You are not compelled to take those statements that were made out as conclusive’ evidence that the credit was longer, but take all the evidence, what the witnesses on both sides have said, and the statements, so far as they furnish any light, and settle that question between the parties, and render your verdict accordingly.” Acting under 'these instructions the jury brought in a verdict for the full.amount.. • We do not think that the defendant has any just grounds of complaint under this charge of the trial court. It is a question open to debate whether the terms of the guaranty are not broad enough to [503] admit of recovery, even if the statements rendered am to be accepted as giving the actual terms governing the transactions. The language of the guaranty is “ I hereby guaranty the payment of $300.00 sold on your usual terms,” and it may be contended, with no great strain upon the use of language and in accord with commercial usage, that the words, “ Terms, 330 days,” refer to the time which is to be given after the rendering of the statement of a running or open account, such as the one between this plaintiff and Adolph Frieder concededly was. The statement shown as Exhibit 0 bears date of February 15, 1896, while the items of the bill run from the 11th of September, 1895, to the Jth of December in the same year, and it is fair to assume that the terms referred to in the guaranty were for the time which might elapse after the rendering of the bill or statement during'which the obligation might be discharged at a discount of three per cent. The mere memoranda figures in connection with separate items do not modify the agreement as between the parties to this action, and there is nothing to indicate that the agreement was not lived up to in good faith on the part of the plaintiff. As was said by this court in the case of Krakauer v. Chapman (16 App. Div. 115): “The purpose of this letter was to induce the plaintiffs to deliver the goods upon the defendant’s credit. This purpose has been accomplished, and we ought not now to fritter away the substance of the contract and defeat the plaintiffs’ right by subtle refinement as to precise and particular procedure in payment. We should rather give effect to the substance of the matter in the interest of stability and certainty in commercial dealvngs.” Out of the conflicting testimony, with these statements before them, the jury, under a fair and impartial charge of the trial court, has found that the goods were sold to the brother of the defendant within the terms of the guaranty, and this fact being established, we cannot discover any end of private justice or of public policy which is to be subserved by disturbing the judgment of the court below. The judgment and the order appealed from are affirmed, with costs. All concurred. Judgment and order affirmed, with costs.