
    Nathan Lamport, Respondent, v. Herman Greenberg et al., Appellants.
    (Supreme Court, Appellate Term,
    November, 1905.)
    Guaranty — Construction — Extent of liability.
    A written guaranty, by which defendant guaranteed to plaintiff “ the sum of $100, the amount which they will sell to the Fawer Slipper Co.” covers only the first $100 worth of goods purchased by that company and not an indefinite number of purchases up to the $100 limit.
    Appeal by the defendants from a judgment, rendered in favor of the plaintiff, in the Municipal Court of the city of New York, fourth district, borough of Manhattan.
    Samuel Rosenberg, for appellants.
    Horace London, for respondent.
   Per Curiam.

On September 18, 1902, the defendants executed a written guaranty to the plaintiff, in behalf of the Fawer Slipper Co., as follows: “ In consideration of $1.00, paid to us by Lamport, we hereby guarantee the sum of $100, the amount which they will sell to the Fawer Slipper Co., that in case of their failing to pay, we will pay the same on demand, after 30 days from date of purchase.”

Plaintiff sold goods to said Eawer Slipper Company and took notes from said company for the amount, or part thereof, due for such purchases. Defendants claim that this was an extension of credit and relieved them from their guaranty. When the notes were not paid, plaintiff sued defendants on the guaranty. It is the claim of plaintiff that defendants agreed to the taking of the notes, at the time they were made, and he produces a witness, an employee of plaintiff,. who swears I told him (Greenberg) that Mr. Lamport (the plaintiff) sent me down to ask Mr. Greenberg whether the acceptance of the notes would be satisfactory to him, in payment of the Eawer Slipper account, and he said it would be all right.” There is a conflict of testimony, but the court believed plaintiff’s witnesses and gave judgment for plaintiff for $72.80. There has been no revocation of the guaranty or termination thereof by defendants, either verbally or in writing. Defendants, however, claim that it was intended to cover merely the first purchase made by the company of plaintiff to the extent of $100. The defendant Greenberg swears “ I gave a guaranty of $100 for the first purchase.” This assertion does not appear to he directly contradicted by the plaintiff, although the theory of plaintiff’s ease was that the guaranty was continuous. It appears that goods were sold to the company by plaintiff, after the making of the guaranty, to the extent of $268.55; that of this sum $123.75 was, apparently, paid in cash; that $120 was paid in five notes of $24 each, of which notes two remain unpaid; that the amount of these unpaid notes, i. e., $48 together with the $24.90, the amount remaining due and not included in any of the notes, makes up the $72.80 sued for in this action. It will, therefore, be observed that the first purchases, to the extent of a greater sum than the amount of the defendants’ guaranty, have been paid for.

The wording of the guaranty itself would seem to imply that it was intended to cover only the first $100 worth of goods purchased. It reads we hereby guarantee the sum of $100, the amount which they will sell to the Eawer Slipper Co.,” etc.; that is to say, the plaintiff was to sell $100 worth of goods to the company, which defendants were to guarantee would be paid for. This language hardly seems to imply that the guaranty is to cover an indefinite number of purchases up to the sum limited of $100.

It seems to us that the court below misconstrued the meaning of the guaranty.

The judgment is reversed and a new trial is granted, with costs to appellants to abide the event.

Present: Scott, Gildersleeve and MacLean, JJ.

Judgment reversed and new trial granted, with costs to appellants to abide event.  