Stewart v. Ranney

By the court, Brady, J. The claim against a guarantor is strictissimi juris, and the terms of the guarantee must be complied with. If the term of credit be longer or shorter than that named by him he is discharged. (Walrath agt. Thompson, 6 Hill, 540; S. C. 2 Comst. 185; Leeds agt. Dunn, 6 Seld. 469; Henderson agt. Marvin, 11 Abb. Pr. R. 142.) There is but one exception to the adjudications in this state on that subject, that I have been able to find, and that is the case of Smith agt. Dann, (6 Hill, 543.) The plaintiff in that case accepted the vendee’s note for three months, which, being entitled to days of grace, extended the term beyond that named in the guaranty. Justice Bronson declared the rule to be that guaranties, like other commercial contracts, must be construed with reference to the usages of trade, and that by usage a credit of three months, where a note was taken, included the days of grace. He admitted that the point had never been decided.- It is a matter of some importance to ascertain " to what extent the usages of trade are tó enter into a con [284] tract, which is in itself clear and explicit—neither ambiguous in phraseology, nor requiring explanation by parol of any expression contained in it, and particularly when such usage relates not to the contracting party directly, but remotely, as in this case. Remotely, because the usage set up, which is to bind the defendant, is one affecting directly the relation of vendor and vendee, and entitling the former to average notes on a running account. Unless such a usage can be written over the signature of a guarantor, then the case of Smith agt. Dawn has no general application, and must be confined to cases involving the same facts. There are two things to be said of that case. The first is that it stands alone. The second is that the credit given was the exact credit authorized, excluding the days of grace which custom gave to the debtor, and of which he could not be deprived save by express stipulation. The usage applied, it may also be said, was almost universal, governing promissory notes for whatever purpose given, and therefore one which every merchant must be supposed to have known. The usage relates, however, more to the mode of payment than to the credit given. If the goods had been sold on a credit of three months, and no notes had been given, no days of grace would have extended that credit an hour beyond the time named. The authorities, as already suggested, exact a strict compliance with the terms of the guaranty. Resort may, doubtless, be had to the usages of trade, to explain ambiguities, or the commercial meaning of a doubtful phrase, and the instrument is to be construed according to what is fairly to be presumed to have been the understanding of the parties, without any strict technical nicety, as said by C. J. Thompson in Lee agt. Dick, (10 Peters, 482.) None of these elements are necessary in this case. The guaranty is clear and explicit. Its terms are plain, and it is conceded that they have been departed from. It is true that the departure is said to be justified by the custom of [285] averaging credits, but I do not think the rules governing guaranties can be said to allow the application of such a custom. I think, also, that this case does not fall within any general rule of construction which will warrant the addition of a clause to the defendant’s contract. The case of Smith agt. Dann must, if these views be correct, be confined to a class of cases sui generis, and cannot have a general application. The judgment should be reversed.. Daly, F. J., concurred.