Hamilton Trust Company v. Shevlin

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 13, 1913, which affirmed a judgment in favor of defendant, respondent, entered upon a decision of Special Term sustaining a demurrer to and dismissing the complaint as to said defendant. The complaint alleges as four separate causes of action that the plaintiff had loaned money at different times to individuals .named in the following agreement, which loans remained unpaid and which it was sought to recover under said instrument: “Whereas, John McCarty, Michael J. Coffey, Fred C. Cocheu, Michael J. Kennedy, John Keenan, have applied for and have received from the Hamilton Trust Company certain sums of money, to wit: $50,000 on bonds of the Jersey City Water Supply Company,' $70,000 par value, and $30,000 on the Guarantee Trust Company certificates of the Nassau Electric Railroad, $32,500 par value, and Whereas, the said parties intend to ask from the said Hamilton Trust Company for other loans from time to time, not to exceed in the aggregate the sum of $250,000.00. Now, therefore, this memorandum witnesseth: That in consideration of the premises and other good consideration, we, Patrick H. Elynn and James Shevlin of the Borough of Brooklyn, do hereby jointly and severally guarantee to the said Hamilton Trust Company and its successors and assigns, the payment of the said loans already made as aforesaid, and all other loans which may be made to the said parties, to the sum. of $250,000.00, with interest according to the terms of the said loan; to which guarantee and payment we hereby bind ourselves, our heirs and assigns. “ In witness whereof, we have hereunto set our hands and seals this 20 day of Dec., 1899. “ (Signed) P. H. ELYNN, [l. s.] “ (Signed) JAMES SHEVLIN. [l. s.] “ In presence of “ (Signed) Feed C. Oocheu.” Each of these causes of action are for loans to one of the four individuals, although the writing recites and names five, and the question, therefore, is whether this defendant can resist liability for the loans made by plaintiff separately to each of the four individuals, instead of to the five collectively, by insisting upon a construction of the guaranty according to its letter and terms.