Federal Sign System v. Berger

BIJUR, J. [1] Plaintiff sued defendant as guarantor on a written “lease” made by one Goldberg with the plaintiff for the use' of an electric sign. The agreement recites that it is made between plaintiff and said Goldberg, and it is signed, “U. H. Goldberg, Lessee, Sole Owner.” Between the words “Goldberg” and “Sole Owner” appears defendant’s signature. If the agreement in that form is not to be construed, on its face, as meaning that defendant is either a party or a guarantor, then his signature creates an ambiguity, and parol testi 937 mony was properly admitted to explain the capacity in which defendant signed. • Esselstyn v. McDonald, 98 App. Div. 197, 90 N. Y. Supp. 518. Such evidence was given by plaintiff’s salesman, who testified that at the time of the signature, Berger said that he would guarantee the contract, and the salesman thereupon made a notation on the side of the agreement: “Will guarantee credit.” This notation was not part of the contract. The parol testimony, therefore, did not, as defendant claims, vary the terms of the agreement. [2] The defendant also urges that, because it was shown that Goldberg had sold his business to a third party and plaintiff had billed the weekly rental of the sign to such third party, there had been such a change in the principal contract as released defendant, even if he were to be held otherwise as guarantor. The facts- recited do not, however, indicate any change in the contractual relations of plaintiff and Goldberg. Moreover, any doubt on that point is dispelled by proof, admitted without objection, that plaintiff recovered against Goldberg a judgment for rental during the several weeks when Goldberg’s assignee failed to pay. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.