Schwartz v. Hyman

In February, 1879, defendant wrote a letter to plaintiffs requesting them to send to P. a full line of samples " suitable for spring and summer at the lowest figure,” adding “ I will guarantee the payment of any goods you may sell him, hoping you will comply with my request and attend to it at once.” Plaintiff sent the samples as requested; P. ordered various bills of goods from time to time and paid for his purchases up to 1883; for goods sold during that year he did not pay. . In an action upon the guaranty, heU, that it was not a continuing one, but referred simply to and covered the one transaction, i. e., the goods ordered from the samples sent as requested; and that, therefore, plaintiffs were not entitled to recover'.

Appeal from judgment of the General Term of the Supreme Gourt, in the first judicial department, entered upon an order made May 29, 1885, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court. The nature of the action and the material facts are stated in the opinion.' , The instrument in question was a continuing guaranty. (Agawam Bk. v. Stern, 18 N. Y. 510, 511; City Nat. Bk. v. Sherill, Hill and Denio, Supp. 219; Merchant's Nat. Bank of Whitehall v. Hall, 83 N. Y. 343, 344; Toothe v. Elgutter, 45, Am. R, 103; Gates v. Johnson, 24 N. Y. 64; Scott v. Myall, 60 Am. Dec. 487; Lowe v. Beckwith, 58 id. 659; Menard v. Scudder, 56 id. 610, 611; Hotchkiss v. Barnes, 34 Conn. 27.) If the language was in doubt then the evidence to explain what was apparently intended was proper, and the question on this point should have gone to the jury. ( White’s Bank v. Myles, 73 N. Y. 335; Gates v. McKee, 13 id. 232; Evansville Nat. B’k v. Kaufmann, 93 id. 281.) A contract of guaranty is to be construed, with the object of arriving at the intention of the parties. (Morgan v. Boyer, 39 O. St. 326; Bank v. Kaufmann, 93 N. Y. 273, 281; Rindge v. Judson, 24 id. 64, 70; Crist v. Burlingame, 62 Barb. 351, 356; Lawrence v. McCalmont, 2 How. [U. S.] 426,449.) To ascertain the intention of the parties in the action at bar, attention should not be restricted to the single clause “ I will guarantee the payment of any goods which you may sell him,” which forms only part of a sentence conveying but a single indivisible idea. ( White’s Bank v. Myles, 73 N. Y. 235; Knowlton v. Hersey, 76 Me. 345 ; Morgan v. Boyer, 39 O. St. 324.) Guaranties like other contracts are subject to all the limitation expressed therein, and also to all such as may be fairly implied from their language. (Bank v. Kaufmann, 93 N. Y. 273, 282; Rindge v. Judson, 24 id. 64; Douglas v. Reynolds, 7 Pet. 122; Baylies on Sur. & Guar., etc., § 124.) When no time is fixed and nothing in the instrument indicates a continuance of the undertaking, the presumption is in favor of a limited liability as to time. (Fellows v. Prentiss, 3 Denio, 512, 519; Crist v. Burlingame, 62 Barb. 351, 358; Baylies on Sur. & Guar., etc., § 7.) Bank v. Hall, 83 N. Y. 338; White’s Bank v. Myles, 73 id. 335; Bell v. Buen, 1 How. [U. S.] 169, 186; Bank v. Kaufmann, 93 N. Y. 273, 284; Morgan v. Boyer, 39 O. St. 324.) The fact that the guaranty is unlimited in amount raised a legal presumptive that it was not intended to be unlimited as to the time, but was to be confined to the first lot of goods sold. (Rogers v. Warner, 8 John. 192; Whitney v. Groot, 24 Wend. 82; Morgan v. Boyer, 39 O. St. 324.) The words “ any ” or “ all ” do not determine the nature of a guaranty. (Rogers v. Warner, 8 John. 119; Whitney v. Groot, 24 Wend. 82 ; Morgan v. Boyer, 39 O. St. 324; White v. Reid, 15 Conn. 457; Craemer v. Higgiman, 1 Mason, 323; Rapelye v. Barley, 5 Conn. 149.) There was no such ambiguity in. the guaranty involved in this suit as required the court to go into the evidence of all the attending-circumstances. (Crist v. Burlingame, 62 Barb. 355, 356 ; Lawrence v. McCalmont, 2 How. [U. S.] 426; Rindge v. Judson, 24 N. Y. 64, 70.)