
    Charles A. Keene, Respondent, v. The Newark Watch Case Material Company, Appellant.
    First Department,
    March 16, 1906.
    Guaranty — surety on bond to secure performance of contract to return gold — evidence — when written admissions of promisee admissible against surety—failure to ask to go to jury on specific questions after motion for direction of verdict —when surety not relieved from liability on bond for breach of contract to return gold.
    When the defendant has become surety on a bond given to secure the contract of another company to return to the plaintiff the surplus of gold furnished by the plaintiff to he made into watch cases, and when an officer of the defendant has been present at an accounting between the plaintiff and the company obligated to return the gold, at which accounting a statement is signed by the president of such company admitting the amount of gold delivered by the plaintiff, such statement is admissible in evidence against the surety in an action to recover on said bond, founded upon a Breach of the promise to return the gold.
    A defendant, which moves for the direction of a verdict, with a request that, if the motion he denied, 'it he permitted to go to the jury, and thereafter when the plaintiff moves for a verdict makes no request to go to the jury on any specific question, canúot obtain á reversal of a direction of a verdict for the plaintiff on the mere statement that the defendant excepts to the refusal of the court to allow the defendant to go to the jury, when the plaintiff is clearly entitled to a verdict on the facts proved.
    Such surety is not relieved from liability on said bond because the plaintiff refused to continue to furnish gold under the contract, when the other party to the contract admitted that it could not account for gold already furnished.
    Appeal by the defendant, The Newark Watch Case Material Company, from a judgment of the Supreme Court in favor of the-plain tiff, entered in the office of the clerk of the county of New York on the 1st day of May, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      
      Isaac L. Miller, for the appellant.
    
      George C. Harrison, for the respondent.
   Ingraham, J.:

At the end of the testimony.counsel for the defendant moved for the direction of a verdict", and asked, if that motion was denied, that the defendant he permitted .to go to the jury. That motion was denied, and counsel for the plaintiff moved for the direction of a verdict for the plaintiff, which was granted. The.' defendant made no request to submit arty specific ’ question to- the jury.

. The action was based upon a contract, a. copy of which was annexed'to the answer of the defendant, and a bond given by the" defendant-to secure the performance of that contract, a copy of which was annexed to the complaint.

The contract was made between the plaintiff, of the first part, and , the Camrh Watch-Case Company, of the. second part. By it the plaintiff agreed to “ place into the possession of the party of the second part, for the purpose hereinafter mentioned, bars or quantities, of gold of customary weight and fineness, to.the value of four thousand ($1,000) dollars, currency of the United States "of America that the Camm Watch Case Company would use said gold so to be furnished in the. construction and manufacture of watch cases of the character thereinafter mentioned; that the plaintiff would continue to supply bars or. quantities of gold in accordance with the needs and demands of "the said company, such needs' and demands to arise solely by reason of and to' be limited to • the provisions and terms of the contract set forth, and in accordance with the needs of the business engaged in by the parties, to the agreement; that the said company would furnish the labor, machinery, alloy and all other constituent features incident to ,the production and making of the perfect, complete watch case pursuant to and, in accordance with the. terms of the -contract, the said company to construct and have ready for the market a sufficient number of watch cases to satisfy the demands and needs of the.business of, and in accordance with the orders given by the plaintiff, . and to deliver reasonably promptly to the plaintiff all the watch cases. manufactured by the said company pursuant to the agreement; the title to'all the gold supplied by the plaintiff to remain in the plaintiff from the delivery of the same to the said, company throughout the manufacture of the watch cases constructed in accordance with the terms of the agreement and the return thereof to the party of the first part in watch-case form.; that the said company would render an account to the plaintiff at the termination of the contract of all the gold it will have received during the existence of the agreement and render an account at any and all reasonable times of the gold it had received upon the request of the party of the first part, during the existence of the contract; that the account so made should be a basis for determining the status of the parties as to the value and amount 'of gold furnished by the party of the first part to the party of the second part, and delivered, actually or constructively, by said party of the second part to the party of the first part in 'watch-case form. The party of the second part to be answerable in damages to the party of the first part for any loss in gold furnished under the provisions of the contract. The party of the second part to deliver at the office or place of -business of .the party of the first part, in the city of New York, borough of Manhattan, all the gold in gross remaining in the factory of the party of the second part, at the termination of the contract, for the purpose of finally settling accounts between the parties.

To secure the performance of this contract by the Camm Watch Case Company, the bond was given by which the Camm Watch Case Company as principal and the defendant as surety were held and firmly bound unto the plaintiff in the sum of $10,000, the condition being that if the principal “ shall well and truly discharge, at the termination of the said contract referred to herein, the obligations arising as hereinbefore set forth, that then these presents shall be and become null and void.” It was further understood, covenanted and agreed “that The New York Watch Case Material Company * * * shall only be liable to the said Charles A. Keene, the obligee herein, for any loss of gold in an amount in excess of one-half of one percentum of all the gold furnished under the contract referred to herein.”

The complaint alleges that, in accordance with the agreement between the plaintiff and the Camm Watch Case Company, the plaintiff furnished to the Camm Watch Case Company gold bars and materials of the value' of $49,000 from the 8th day of May, 1901, until the 1st day of September, 1901, and received from the said company gold watch cases in returnthat on the lash mentioned day the plaintiff demanded an accounting of the gold received by the Camm Watch Case Company, and upon an inventory being .made of the "plaintiff’s gold in the factory of the said company, a shortage was disclosed in the gold furnished by the plaintiff of the value of about $5,600.15 ; that the plaintiff thereupon demanded that the said Camm Watch Case Company make good the loss of gold by delivering to him. gold sufficient to balance the gold account, or give a cash equivalent therefor, with which demands the said company had not complied, and, therefore, there was á loss of $5,600.15, the value of the said gold.

The defendant demurred to this complaint; the demurrer Was overruled at the Special Term (39 Misc. Rep. 6) and that judgment was affirmed. by this court (81 App. Div. 48). Upon the trial the only question to be determined was as to the damage that the plaintiff sustained by reason of the loss of gold which had been furnished by the plaintiff to the Camm Watch Case Company, and whether the said company had satisfied all claims and obligations arising because of any loss in said gold so furnished, At the time the contract was executed there was gold in the Camm Watch Case factory of the value of $4,000, for which the plaintiff' paid to the Camm Company that amount. The plaintiff then continued to furnish gold as called-for by the Camm Watch Case Company until September, 1901. Some time ‘between the 9th and 23d of September, 1901, the plaintiff demanded an accounting from the Camm Company under the 9th clause of the contract. A detailed statement of the amount of gold furnished by the plaintiff was. made up, containing the dates- and amounts of the delivery of gold, which aggregated - $48,012.T4. There was a meeting at the office of the Cannn Company between the plaintiff and one of his employees, Mr. E. W. Camm, the president of the Camm Company, and a Mr. Arthur, the secretary of the defendant. These parties appear to have all taken part in this accounting. Each had a statement of the amount of gold furnished, and they all tallied and the amounts were checked up and balanced.. At the foot of this agreement the president of the Camm Watch Case Company marked O. K., E. W. Camm.” This statement was received in evidence over the objection and exception of the defendant, and this exception is relied upon by the defendant on this appeal.

We think this evidence was properly admitted. The accounting was one under the contract which was recited in the bond upon which the action was brought. An officer of the defendant was present at this accounting and took part in it. It certainly was competent evidence against the defendant of an accounting between the defendant and the plaintiff as to the amount of gold furnished by the plaintiff under the contract. At the same time there was an accounting as to the amount of gold that had been delivered by the Camm Watch Case Company to the plaintiff. The gold on hand was produced by the Camm Company and it was ascertained that there was a shortage of about $5,600. The plaintiff then insisted on removing the gold that was on hand which he claimed belonged to him. This the officer of the. Camm Company objected to, but the plaintiff finally took away the gold and refused to furnish any more until the Camm Company had supplied this deficiency. This the Camm Company refused to do. No further effort was made on behalf of the Camm Company to perform its agreement, and after the termination of the contract this action was brought.

The plaintiff having rested no evidence was offered by the defendant to disprove these facts, and the evidence sustained a verdict for the amount of this deficiency. The plaintiff having rested, the defendant’s counsel said : “ I move for a direction of a verdict for the defendant and if Your Honor denies my application for a direction then I ask that it be permitted to go to the jury.’’ This motion was denied. The plaintiff then moved for the direction of a verdict and counsel for the defendant then said : “ In order to get it on the record I except to the Court declining to direct a. verdict for the defendant, and I also except to the refusal of the Court to allow the defendant to go to the jury.” The defendant made no request to'submit any particular question to the jury, and I think upon this record it was not error for the court to refuse to entertain the defendant’s request. The only question that could have been presented was as to the amount of this shortage, but there was no dispute but that the parties to the original contract had an accounting under the contract in which a representative of the deféndant, the surety, took part and the amount of the shortage, had then been ascertained. If the defendant had wished to submit this specific question to the jury it should have called the attention of the court to the question, and a general request to go to the jury or to .submit the case to the jui*y generally was not calling the attention of the court to a specific'question, and as the'.plaintiff was clearly entitled to a verdict an exception to such a refusal presents no question for .review. ■<

There is no merit in the claim of the defendant that by the plaintiff’s refusing to allow the gold that it had furnished to remain with the Camm Watch Case Company after that company had- violated the contract in disposing'of gold furnished by the plaintiff under the contract, the obligation of the surety was discharged or that plaintiff was bound to continue to furnish gold to the Camm Company. It was proved that the Camm Company had,over $5,000 of gold of the defendant which it had failed to account for. The obligation of the plaintiff was to furnish gold'as required by the contract, arid while this gold was in the .possession of the Cainm Company, no further gdld was required for the purposes On the contract. Plaintiff Was not required to continue to furnish gold to the Camm Company or to its officers when" it was conceded that they had an amount.of gold exceeding $5,000 belonging to the plaintiff which they could use in- carrying out the contract. It was not, therefore, a breach of the contract for the plaintiff to refuse to furnish further gold, or to allow the gold thatjie had delivered to the Camm Company to remain in its possession., A.t the termination of the contract, the Camm Company having failed, to yomply with' its contract and to account for the gold plaintiff had delivered, there was a breach of the condition of the bond Which entitled the plaintiff to recover.

I. think the judgment '.was right and should be .affirmed, with' costs.

O’Brien, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Judgment affirmed, With costs* . Order filed. 
      
      
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