
    Frederick L. McAfee, Plaintiff, v. Clarence F. Wyckoff, Defendant.
    (Supreme Court, Kings Trial Term,
    July, 1904.)
    Guaranty — “Payment on delivery.’’
    A guaranty of payment by the vendee of the price of castings-to be manufactured by the vendor “as per contract,” deliverable in fifty lots on fifty consecutive days, is only a guaranty of the price of castings actually delivered, and,- for a breach of the contract, consisting in the vendee’s, refusal to accept castings manufactured and shipped to him-, the vendor cannot recover under the guaranty.
    
      In view of the vendee’s right to ascertain by inspection before acceptance whether the castings tendered correspond with those agreed to he manufactured, the covenant of “ payment on delivery” is not violated by a stipulation, made between the parties to the contract after it and the guaranty had been executed, that the castings should he shipped to the vendee with the bill, that he should cheek them off, and then send a check for them to the vendee.
    Action to recover against the defendant as guarantor.
    Contract to manufacture and deliver 100,000 steel castings. Castiiigs to he delivered at the average rate of 2,000 per day, payment to he made upon delivery of the castings. Defendant guaranteed payment on castings ordered as per contract.
    After the making of the contract and the giving pf the guarantee by the defendant, the vendor and vendee arranged between them that the vendor should ship the castings and send the bill thereof to the office of the vendee, and the .vendee should check off the castings so shipped, and then send a check therefor to .the vendor.
    The vendor manufactured and shipped a considerable portion of the castings, a portion of which the vendee received and paid for, another part of which he received and did not pay for, and still another portion he refused to take from the railway station located at the place where it carried on business. The larger portion of the castings called for by the contract was not manufactured or delivery thereof tendered by the vendor.
    The plaintiff seeks to recover from the defendant as guarantor payment for the castings received by the vendee and not paid for, also payment for the castings manufactured and shipped to the vendee, and which the vendee refused to accept, together with payment of the difference between the contract price of the castings not manufactured and what it would have cost to manufacture them.
    The claim of the defense is that the guarantee was only of payment for castings actually delivered, and was not a guarantee that the vendee would take and pay for all the castings provided for in the contract. That it was only a guarantee of payment in accordance with the terms of the contract, that is, cash on delivery. The defendant furthermore contends that by the arrangement,. or agreement, between the vendor and the vendee, whereby the vendee was. not to make payment for the castings until it had checked! them off, there was a departure from the contract that hehád guaranteed, and that he was thereby released therefrom,
    Perkins & Jackson, for plaintiff.
    Edward S. Griffing, for defendant.
   Herrick, J.:

“A guarantor, like a surety, is bound only by the strict letter or precise terms of his contract and that the claim against him is strictissimi juris." Creamer v. Mitchell, 162 N. Y. 477-486.

The contract in this case was for 100,000 castings to be-delivered from time to time, at the average rate of 2,000 per day, to be paid for upon delivery. The guarantee was,. “ I guarantee payment on castings ordered by * * * as-, per their contract with you.” This is not a guarantee that-the contract will be fulfilled in all its terms. It is not a. guarantee against any breach of the contract. It is simply a> guarantee of payment in accordance with the terms- of the-contract, that is, that payment will be made for the castings-delivered, upon their delivery. He only became responsible-for the castings delivered and received by the vendee, or which were tendered and should have been received by thevendee, and not1 for any damages suffered by the vendor im consequence of the vendee’s terminating the contract.

The plaintiff’s claim to recover the difference between the-contract price and the cost price of manufacturing the castings is a claim for damages for a breach of the contract, and. is not a claim for payment for castings delivered.

I can see no distinction between this case and that of De Luka v. Goodwin, 142 N. Y. 194, and Beagle v. Cable, 55 App. Div. 155.

I must, therefore, hold that the plaintiff cannot recover upon the1 guarantee the difference between the contract price-of the manufactured and untendered castings and what it would have cost to have manufactured them.

As to the contention, that there was a.departure from the terms, of payment provided for in the contract after the guarantee of payment by the defendant, by the arrangement between the vendor and vendee, by which when the castings were shipped, the vendor should send the bill therefor to the vendee, who should check off the castings and then send his check therefor, I do not think it can be sustained.

When payment for articles is to be made upon delivery, the delivery is not complete until the consignee has had an opportunity to ascertain what is tendered to him, and whether it corresponds with what he is asked to pay for. “ When a vendor sells goods of a specified quality, but not in existence or ascertained, and undertakes to ship them to a distant buyer when made or ascertained, and deliver them to the carrier for the purchaser, the latter is not bound to accept them without , examination. The mere delivery of the goods by the vendor to the carrier does not necessarily bind the vendee to accept them. On their arrival he has the right to inspect them to ascertain whether they conform to the contract.” Pope v. Allis, 115 U. S. 363; Croninger v. Crocker, 62 N. Y. 151; Pierson v. Crooks, 115 id. 539; Benj. Sales, § 695.

It follows from this that a delivery is not complete until there has been a reasonable time for examination or inspection. This applies not only as to the quality of the goods, but also as to numbers when the delivery consists of a number of articles.

In this case the contract calls for the shipment from time to time of a number of the articles contracted for, and for payment for the number so delivered from time to time; the vendee had the right of inspection, or examination, to ascertain whether the number purporting to have been shipped and delivered was in fact delivered, and until a reasonable opportunity was afforded him for that purpose the delivery would not be Complete.

In this case checking off meant ascertaining the number of castings, and until that number was ascertained it is apparent that the vendee would not know whether the amount set forth in the bill sent to him was correct or not.

Yo contention was made that payment by check was not a compliance with the requirements of the contract. The plaintiff, therefore, is entitled to recover of the defendant the contract price of the castings manufactured and shipped to the vendee’s place of business, ns set forth in the decision filed herewith.

Judgment for plaintiff.  