
    Charles Hutchinson, Respondent v. Mary F. Root, Appellant.
    
      Contract of guaranty —■ intention of the pm'ties controls —paroi evidence inadmissible where the terms a/re unambiguous.
    
    In an action brought upon a sealed, instrument of guaranty, dated October 13,1891, by. which the defendant guaranteed to the plaintiff the payment, by James H. ■ Root, as agent for Hattie P. Root, of all sums up to §5,000, which might become due and owing from said Root, as'agent, on account of coal of-the Ben Carbon Colliery which might be sold to or by said agent, it appeared that on October 15, 1891, two days after the execution of the guaranty, the plaintiff entered . into a contract with Hattie P. Root, by James H. Root, as her a'gent, by which the plaintiff, among other things, agreed to give Hattie.P. Root the sole agency for the sale of the total output of the Ben Carbon Colliery, “at all points along the line of the New York, Lake Erie and Western Railroad Company, its branches and connections; ” and also agreed to fill all the orders for coal sold-by said Hattie P. Root or her agents to any person on the line of the railroad and its branches or connections, while Hattie P. Root agreed to employ James H. Root as her agent, and to give to the plaintiff the written guaranty of the defendant, in the sum of §5,000, for the faithful performance of her.agreement by James H. Root.
    The guaranty in suit did not refer to the contract, but it was found that it constituted a part of the consideration of the contract by the referee who tried the cause, who did not. find, however, that the defendant knew, when she made the guaranty, what the provisions of the contract to be made between the plaintiff and Hattie Root were to be, or that she gave the guaranty in view of any particular contract, or solely to secure the performance of the contract made October 15, 1891.
    In November and December, 1891, James H. Root received but failed to pay for certain quantities of coal, and thereupon this action was -brought upon the guaranty.
    
      Held, that as none of the circumstances attending the execution of the guaranty were sho.wn, the guaranty must be construed upon its own words alone;
    That the intention of the parties must be ascertained, and that when ascertained the' defendant was entitled to have the contract, thus construed, applied - strictly;
    That the guaranty was broad enough to cover any coal sold by James H. Root, or to him as agent for Hattie P. Root, but that if confined to coal delivered under ■the contract of October fifteenth, "as by that contract Hattie P. Root had been given by the plaintiff the' sole agency for all the coal sold upon the line of the New York, Lake Erie and Western railroad, it was only necessary in order to bring the sale within the guaranty for the plaintiff to show that the place where the coal was delivered was upon the line of that railroad;
    That as there was no ambiguity in these provisions of the contract, paroi evidence was inadmissible to explain them;
    
      That as the contract contained no phrases peculiar to the trade, no such phrases could be interpolated by the defendant, and then be explained by paroi evidence.
    Appeal by the defendant, Mary F. Root, from a judgment of the • Supreme Court in favor of the plaintiff, entered in tne office of the clerk of the county of New York on the 2d day of October, 1894, upon the report of a referee.
    
      George H. Adams, for the appellant.
    
      William H. Wilder, for the respondent.
   Rumsey, J.:

On the 15th day of October, 1891, the plaintiff entered into a contract with, one Hattie P. Root, by James IT. Root, her agent, by which, among other things, the plaintiff contracted to give to Mrs. Root the sole agency for the sale of the total output of the Ben Carbon Colliery, “ at all points along the line of the New York, Lake Erie and Western Railroad Company, its branches and connections.” The plaintiff further agreed to fill all orders for coal sold by said party of the second part or her agents, to any person or persons on the line of the said New York, Lake Erie and Western railroad, or its branches or connections, at prices stated in the contract.

The contract further provided that Mrs. Root agreed to employ James H. Root as her agent in selling the coal, and to give to the plaintiff a written guaranty of the defendant here, in the sum of $5,000 for the faithful performance by James H. Root, “agent of said party of the second part, of her agreements above set forth.” This contract was delivered on the day of its date. Two days before that time the defendant had executed the guaranty on which this action is brought, and which is in the following words: “ In consideration of the sum of one dollar to me in hand paid, and other good and valuable considerations me thereunto moving, I hereby guarantee to Charles Hutchinson, of .Carbondale, Pa., the payment by James H. Root, of New York city, as agent for Hattie P. Root, of all sums up to five thousand dollars ($5,000), which may become due and owing from said Root, as agent, on account of coal of the Ben ■Carbon Colliery, which may be sold to or by said agent.”

During the months of November and December, 1891, the plaintiff delivered considerable quantities of coal to James H. Root, for a. large portion of which Root failed to pay, and thereupon this action, was brought upon the guaranty of the defendant.

The action was tried before a referee and judgment was directed to be entered for the plaintiff in the amount claimed. From. that, judgment the plaintiff takes this appeal.

The serious question presented by the record in its present condition turns upon the construction to be given to the contract of guaranty upon which the action was brought. The contract of guaranty was. dated on the 13th of October, 1891. It'was under seal, and it-expressed a consideration. It did not refer to the contract between Hattie Root and the plaintiff; indeed, it could not do so, as at the-time it wa's executed that contract had not been made. The referee-has found that this'agreement of guaranty was a part of the consideration given to the plaintiff at the time of making the contract'with. Hattie Root, but he has not found that at the time of the execution of this guaranty by the defendant, the provisions of the contract to-be made between plaintiff and Hattie Root were made known to her or that she had in view any particular contract, or that any'special provisions should be put into the contract which she intended to-guarantee. Neither does he find that this guaranty was given solely to secure the performance of the contract of October fifteenth, nor can there be any presumption that such was the case. The facts-do not show any of the circumstances which were presented to the-. defendant at the time of the making of this guaranty, and for that, reason it must be construed upon the words of the guaranty itself.. The rule with regard to the. construction of such contracts is, that.' the court will ascertain the intention of the parties to them in the-same manner as that intention is ascertained with regard to any other contract.. But when the intention of the parties is ascertained, /the guarantor is entitled to have the contract thus construed, strictly applied, -and its meaning cannot be. extended to charge him. upon it. (Schwartz v. Hyman, 107 N. Y. 562, 565; Evansville Nat. Bank v. Kaufmann, 93 id. 273.) Applying that rule, we-must examine the guaranty itself to ascertain the extent of the-defendant’s liability. When we turn to that paper we meet with- no-difficulty whatever. Upon a sufficient consideration, she guarantees. to Charles Hutchinson the payment by James H. Root, as agent for Hattie P. Root, of all sums up to $5,000 which may become due and owing from the said Root as agent on account of coal of the Ben Carbon Colliery which may be sold to or by said, agent. This guaranty by its terms is broad enough to cover' any coal which may be sold by James Root or to him as agent for Hattie Root, and if this construction be given to it, it is quite clear that no fault can be found with the conclusion reached by the referee.

But if it is to be said that the guaranty which was given was a part of the consideration of the contract between Hattie P. Root and the plaintiff, set out in the complaint, and was to be confined to coal delivered under that contract, even yet the conclusion of the referee cannot be overthrown. That contract by its terms gave to Hattie Root the sole agency for the sale of the total output of the plaintiff’s colliery at all points along the line of the New York, Lake Erie and Western Railroad Company," its branches and connections, and by it Hutchinson agreed in terms to fill all orders for coal sold by or to Mrs. Root or her agents to any person upon the liné of that railroad, or its branches or connections, at prices therein stated. íhepe words are not at all ambiguous, nor do they require any construction. When it is made to appear that any particular place is upon the line of that railroad or its branches or connections, so that coal shipped upon that road may be taken by the road to that place, the coal thus shipped is within the terms of this contract. It was made to appear in the case, and was not contradicted, that not only was Weehawken one of the termini of the Erie railroad, but that the coal docks there, upon which large quantities of this coal were delivered, were leased by and under the control of that railroad. When this appeared, it necessarily followed that the coal delivered at that place upon the order of James H. Root, as agent, was within the terms of the contract and was protected by the guaranty.

There was no case made for the admission of paroi evidence to explain these words as used in this contract, except so far as it might have been necessary to show that any given place was situated on the line of that road. Parol evidence is admissible to explain the meaning of words when the words are susceptible of two constructions, in which case evidence may be given of the facts and circumstances which surrounded' the transaction so that the court can put itself in the same position as the parties who mads the contract, to enable it to ascertain the meaning intended by them. (1 Greenl. on Ev. §§ 282, 288.) But that is not this case; the words used here are perfectly plain and not ambiguous in the least.. Parol evidence may also be given where the words used have technical mean-, ing or are terins of art. In such cases experts are permitted to give their opinion as to the meaning of these words. (1 Greenl. on Ev. § 280.) It is claimed that paroi evidence was competent under this principle, and it was with that view no doubt that the referee permitted it to be given. But the rule did not apply here. There were no terms of art used. The defendant proposed by her paroi evidence to show, not the meaning of the.words used here, but the meaning of the words “ tide coal ” and line coal,” which are not used in the contract. Her notion was that she could give testimony by which the plain words of the contract should be limited to include only one kind of coal, and then the meaning thus limited could be explained by the evidence' of experts. But she made no case for the giving of any such testimony as that. If the parties had used the words line coal and tide coal in their contract, it would undoubtedly have been competent to give testimony to explain the meaning of those words, but they did nothing of the sort. They used in the contract plain words which were only susceptible of one meaning, and which certainly cannot be said to have any technical meaning, any where. The proof offered and. given on the'part of the defendant here amounted to showing that under this contract both line and tide coal were shipped to Root as agent, but -that only line coal was intended,to be included within the terms of the contract. It may be quite true, as defendant claims, that coal shipped to the terminus at Weehawlcen is tide coal, although it was conceded in the case that such coal was not necessarily tide coal, but that would not change the construction of the contract, which includes the total output of the mine and the sale of that output at all points along the line, and makes James H. Root the solexagent for the sale of such output, and by which the plaintiff agrees to fill every order for coal which is sold to any person on that, line or its connections, by Hattie P. Root or her agent. Within the terms of the contract he would clearly be obliged to fill all' orders for coal shipped to Weehawken, whether it was line or tide coaly and the defendant just as clearly guarantees payment for one kind of coal as the other, provided only it was shipped on this railroad or its connections.' The stipulations at folio 218 of the case and schedules attached, show; that coal shipped-to Weehawken was shij>ped ujion the order of J. H. Root as agent, and that stipulation includes ail the coal which was recovered for in this action. Whichever construction may be given to this guaranty, whether it be broadly construed according to its terms, or whether those terms be limited by ■ reference to the contract between Hattie Root and the plaintiff, the defendant is clearly liable for the coal which was sold under the" proofs here, and for which she was charged.

It is complained by the defendant that no verified statements of the amount of coal sold to Root as agent were furnished to show the amounts remaining due and unpaid for coal. But that fact is of no' importance here. Such statements were not to be furnished to her, and the provision was clearly one with which the guarantor had ■nothing to do. There is no dispute with regard to the amount of coal sold. She herself stipulated it in this action, and it appears, and is not disputed, that the parties to the original contract adjusted the amounts sold and the amounts in which Root was liable as agent, without any request for a verified statement. This provision of the contract was, therefore, waived by the parties to it, as it might have been, and the fact that they were not delivered cannot be insisted upon by the defendant here.

We have examined the various exceptions taken by the defendant to the rulings of the referee. While some of the evidence might ■ very properly have been admitted in mew of the claims which were presented upon the trial, yet the evidence if given could not have affected the result in the view which we take of the construction of this guaranty.-

For that reason none of these exceptions call for reversal of this judgment.

Our conclusion is that the judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred..

Judgment affirmed, with costs.  