
    Charles Eichhold and Edward A. Miller, Respondents, v. Charles L. Tiffany, Impleaded with Another, Appellant.
    (Supreme Court, Appellate Term,
    November, 1897.)
    1. Guaranty — Proof that it covered sales to persons not specifically mentioned.
    Where vendors bring an action upon an instrument, guaranteeing to them the payment of all goods purchased by B. C. Young & Co. up to the sum of $1,000, they are entitled to prove that sales, made ■ by them to the firm of Young & Bruns, were intended by the parties to be included; and, to this end, they may show that, in an interview had about the time of, but before the guaranty was given, both Yoting and Bruns stated to the vendors that they were going into business under the name of B. C. Young & Co., and that thereupon, one of the guarantors instructed one of the vendors to write out a guaranty, and said that he and the other guarantor would sign it for whatever amount was necessary to protect the account of the said vendees with the vendors.
    3. Same — Extension of credit — Rebutting evidence.
    Where one of the vendees has testified, but not from personal knowledge, so far as appears from his testimony taken by commission, that the credit was, subsequently to the execution of the guaranty, extended by a verbal agreement made between the partner of the witness and one of the vendors, that vendor may testify that he had a certain conversation with one or the other of the vendees, and that nothing was said then about giving them further time.
    3. Same — Res gestae.
    Statements of Young and Bruns, made to the vendors not more than two weeks before the guaranty was given, and while it was an express contemplation, to the effect that Young and Bruns were to constitute the firm of B. C. Young & Co., are competent as a part of the res gestae, although made out of the presence of the guarantors.
    4. Same — Admissions of vendee made subsequent to the transaction, when competent, against guarantors.
    While admissions of a vendee, made after the whole transaction under the guaranty has been concluded, are not competent against guarantors, a statement of the vendee, Young, made to one of the vendors that the firm of B. C. Young & Go., consisted of himself and Bruns, is admissible in order to contradict a statement, contained in the deposition of Young, to the effect that Bruns was not a member of the firm.
    5. Same — Declarations of vendees that they owe the vendors.
    The rule, that declarations of vendees that they are indebted to the vendors, when not supported by original evidence of the fact, are im admissible against guarantors, cannot be made available Where the . guarantors, without objection made, permit the vendors to give in evidence an account rendered by them to the vendees, and admitted by one of the vendees to be true.
    Eichhold v. Tiffany, 20 Misc. Rep. 681, affirmed.
    Appeal from affirmance by the General Term of the Oity Court of Tew York, of a judgment entered upon a verdict in favor of the plaintiffs. Action upon contract of guaranty.
    Charles E. Miller, for appellant.
    Samuel Fleischman, for respondents.
   Bischoff, J.

The main issue iu the case was as to the identity of the principals described in the guaranty under which the defendants were sought to be held liable, the instrument being, framed as follows: ■ . ’

“Tew York,.April 15, 1897.
“ In consideration of one dollar paid to ns. in hand, we hereby guarantee to Messrs. Eichhold & Miller the payment of . all goods purchased by Messrs, B. 0- Young & Go., St. Louis, Mo., to the. extent of one thousand ($1,000) dollars. ' ■ .
“ J. A- Wlliams,
“ O. L- Tiffany,”

It appeal’s from the evidence that the plaintiffs sold and delivered goods between April 20th and September 30th, in the first instance" to “ B. C. Young & Co.,” but after the middle of July to “Young & Bruns,” and since the claim in suit was based upon an' indebtedness of something over $1,000 for all the goods thus sold, it became a question as to whether “ B. C. Young & Co.” and “ Yóung & Bruns ” were in fact identical, according to the understanding of the parties to the guaranty. So far as the merits of the case are presented by the exceptions taken to the denial of the appellant’s motion for the dismissal of the complaint, it appears that the submission of the issues to the jury was not error. It was shown that about the time when the guaranty was delivered, B. C. Young and O. E. Bruns came to the plaintiff’s place of business and stated that they were going into partnership for the purpose of selling hats in Sh Louis, under the firm name of B. C. Young & Co.; that the defendant Williams'then came-in and said to the plaintiff Eichhold, in the presence of both Young and Bruns, The boys say they can use your line of goods in that market,' and that they wish to establish a credit.” Williams told Eichhold at the time “ to write out a guaranty, and that Charles L. Tiffany and he would sign it for whatever amount was sufficient to protect our account with them.” Here was sufficient evidence ■to support a finding by the jury that Young and Bruns were intended as the principals in the guaranty, as given, and the motion for dismissal of the complaint upon the ground that some of the ■goods had been delivered to “ Young & Bruns ” instead of to “B. 0. Young & Co.,” was properly denied. Moreover, it appeared from the account of the dealings between the parties in question that there was a substantial balance due to the plaintiffs for goods billed to “ B. 0. Young & Co.,” in accordance with the "express terms of the guaranty, and, in this aspect, there was an apparent right of recovery.

The motion for dismissal proceeded upon the further ground that the plaintiffs had extended the time of the principal’s credit, it being contended that the uncontradicted evidence showed the fact of such extension. The evidence upon the point is found in the testimony of Young, taken upon commission, that the credit was extended for several months, 'by verbal agreement between Mr. Bruns and Mr. Eichhold.” To contradict this the plaintiff Eichhold was called as a witness and testified, “ In the summer of 1887 I had a conversation with Mr. Bruns or Mr. Young in reference to their indebtedness to us. Hothing was said then about giving them further time.” It is true that this was not a direct contradiction of the existence of an agreement which might have been made at some other interview, but the burden of proving the fact of the extension of credit was upon the defendants, and, so far as the evidence shows, Young’s testimony was not to an agreement of which he knew but only to one of which he had heard. In view of the inconclusive nature of this testimony, its value as proof was to be determined by the jury rather than by the court, and they could properly take into consideration the defendant’s failure to show by cross-examination of Eichhold, or otherwise, the fact that there had been an interview, touching the question of extending the credit, at sometime other than that testified to by Eichhold, in his denial of the fact that an extension was then given.

Our inquiry has not to do with the weight of the evidence, but only with regard to whether or not there was evidence sufficient to take the case to the jury (Kraus v. J. H. Mohlman Co., 18 Misc. Rep. 430), and here, it appears, there was no ground for the dismissal of the complaint, as contended.

The appellant claims further, that error was committed iñ the admission of evidence of statements made by Young & Bruns to the plaintiffs, prior to the time when the guaranty was given, to the effect that they were to constitute the firm of B. 0. Young & Co., these statements having been made in the absence of the defendants. While prior to the giving of the guaranty, the statements were made in the course of the selection of goods by Young and Bruns at the plaintiffs’ place of business, in full and express contemplation of the guaranty being furnished as a basis for their dealings. The evidence shows that this selection of goods took place in the month of. April, and the guaranty was delivered mi the 15th of that month; therefore, such interval of time as there was could not have been great, and, at ,all events, nothing intervened to "affect the nature of these earlier acts as a ¡part of one complete transaction, to which the defendants’ obligations extended. We think that the statements in question were properly admitted as a part of the res gestae, and so competent as against the defendants. Fox v. Parker, 44 Barb. 541, 547; Oppenheim v. Waterbury, 86 Hun, 122; White’s Bank v. Myles, 73 N. Y. 335.

Error is also assigned to the, admission of the testimony of the plaintiff Miller that Young had stated to him, while this action was pending, that the firm of B. O. Young & Go. consisted of himself and Bruns: If offered as a declaration of the fact, this evidence was incompetent since the statement testified to was made at a time when the whole transaction under the guaranty had been concluded, and Young’s admissions could in no manner affect the defendants after that time, but the evidence was admitted .for the limited purpose of contradicting Young’s testimony, as taken by commission, that Bruns was not a member of the firm. It is true that the proper foundation for this evidence was not laid, in that Young had not been asked, so far as appears, whether he had made such, a statement to Miller in the manner and at. the time and place specified by the latter (Meyer v. Campbell, 1 Misc. Rep. 283), but the objection to the question, as made, failed to point out this defect, which might otherwise have been obviated by proof at the trial, and a reversal of the judgment cannot be asked, therefore, upon this ground. Mead v. Shea, 92 N. Y. 122, 127. It may be that the necessary foundation for this question was contained in the deposition of Young, since it does not appear that the whole of such deposition was read in evidence at the trial, and, if it was not to be thus furnished, we cannot say that the respondents would have failed to obtain the required proof had their attention been called to the point, or, in the absence of an. opportunity to obtain it, have withdrawn the question.

The remaining exception relied upon has to do with the propriety of an instruction given to the jury. A portion of the proof given by the plaintiffs to support the sale and delivery of goods to “ B. C. Young & Co.,” or to Young & Bruns,” was found in a statement of account between these parties as buyers and sellers, which account was in evidence supported by Young’s admission of its correctness. In the course of the charge the following language was used by the court: “A surety is not bound by the statement of a principal. If you procure a party to become your guarantor or surety, the mere admission that you are indebted to the seller of goods in so much money would not bind the guarantor for such, but such evidence goes to make up what is called a prima facie case for the seller. He may rest upon that admission and the burden then is upon the guarantor to show that the admission is not true.” The appellant’s position is that the admission of the principal was of no value as proof against the surety and that the -charge was in this respect erroneous, the contention being based upon the rule which is stated in Greenleaf on Evidence (1 Greenl. Ev., § 187) thus: “The surety is considered as bound only for the actual conduct of the party, and not for whatever he might say he had done, and, therefore, is entitled to proof of his conduct by original evidence when it can be had, excluding all declarations of the principal made subsequent to the -acts to which they relate.” This rule, in order to obtain, was to be .invoked when the evidence of Young’s admission was offered, but . ■ that evidence was in fact received without objection, and was, .accordingly, to be considered, together with the other proof in the . case. Crane v. Powell, 139 N. Y. 379. As received in the. ■case, the evidence was prima'facie proof of the fact in question, .and the .jury were quite authorized to accept that proof as sufficient, in the absence of any controversion of it by .the defendants. ■■Had any evidence whatever been given for the defense, upon the .issue of the alleged sale and delivery of the goods,- it might be .said that prejudice would have resulted to the defendant-appellant -from this instruction, since then the jury might have been, led to :give no effect to such evidence unless it was found to outweigh .the- plaintiff’s proof on the subject, but the defendants did not - attempt to meet the plaintiffs’ case in this aspect, and the jury - were further instructed, without objection, that no such proof had been given. We think it. may fairly be said, therefore,'that the appellant had no substantial ground for objection to that part of the charge which we have noted, and, as a whole, the charge ' most fully set forth the obligation which rested upon the. plaintiffs . ■to prove all their. allegations by the fair preponderance- of the j evidence.

The recovery appears to be meritorious and we find no ground ..for disturbing it.

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  