Roake v. Di Marco

Per Curiam: On April 16, 1912, defendant gave this written guaranty: “I understand from Sullivan Parisano, of No. 6 Third Street, New Bochelle, that you are to supply him with building material to the amount of $270, of which you have received $50. That the balance is to be paid at the rate of $50 per month. “ I am willing to secure you for the balance, which is $220, should Sullivan Parisano fail to do so, by sending you the sum of $50, my personal check to your order on the 15th days of each and every month, until the sum of $220 is paid.” Plaintiff supplied materials, delivering on April sixteenth lumber and nails to the amount of $86.55, towards which the principal debtor had already paid $50. By April twenty-sixth plaintiff had delivered materials up to $269.60, but up to November the total sales aggregated $391.26, against which the debtor’s part payments amounted to $185. Plaintiff testified that he had always kept the balance due him under $220. Judgment was given for the balance of the final account, $206.26, with costs. This appeal raised the question of the intent and scope of the guaranty. Was the $220 mentioned a limit for a standing credit, or was that sum (plus $50 then paid) the limit upon the entire sales % The first sentence of the above letter limits its scope. It contains a recital, very precise and definite, of the amount of material to be furnished, namely, $270, on which $50 had been paid, the $220 balance to be payable $50 monthly. The trial proofs did not show any error in this summary of the original agreement. Thus defendant showed just how and for what payments he was “willing to secure ” plaintiff, and confined [600] it to a single transaction as definitely as if his guaranty had been indorsed upon a written contract for lumber sales. After furnishing $270 worth of material there are no words looking to further supplies or carrying the dealing beyond the first sales, as in McShane Co. v. Padian (142 N. Y. 207). Sales to that amount reached the limit imposed by defendant and exhausted his guaranty. (Fellows v. Prentiss, 3 Den. 512; Lamport v. Greenberg, 48 Misc. Rep. 513; Sherman v. Mulloy, 174 Mass. 41.) The judgment and order of the County Court of Westchester county must, therefore, he reversed, with costs of appeal to defendant, and judgment for the plaintiff for thirty-five dollars, with appropriate costs to defendant. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred. Judgment and order of the County Court of Westchester county reversed, with costs of appeal to defendant, and judgment for plaintiff for thirty-five dollars, with appropriate costs to defendant.