
    Cross, Austin & Ireland Lumber Company, Respondent, v. Richard Goodwin, Appellant.
    Second Department,
    April 23, 1909.
    Contract — guaranty of payment by building contractor — liability of guarantor on default of contractor.
    Where the plaintiff, a manufacturer of house trimmings, refused to give credit to a contractor engaged in the erection of a building without security, and thereafter one holding a mortgage on the premises made a written request that the material be delivered to the contractor and agreed in consideration thereof and for the purpose of giving the contractor credit to pay the value of the material delivered upon demand, the plaintiff, having manufactured the material until the contractor abandoned the work and having stored the same, may recover against the guarantor.
    
      Under the circumstances the liability of the guarantor did not depend upon an actual delivery to the contractor as the plaintiff had refused to proceed with the manufacture of the material without the guaranty, and the plaintiff stored the goods at the request of the contractor and tendered delivery after his default.
    Appeal by the defendant, Richard Goodwin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings' on the 17th day of December, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward T. Horwill, for the appellant.
    
      Robert H. Wilson, for the respondent.
   Woodward, J. :

Frank Brettell was engaged in building certain houses on Degraw street, Brooklyn, and applied to the plaintiff to furnish him the trim required for these houses. The plaintiff refused to grant credit or to manufacture the same for him upon his own responsibility, and insisted upon a guaranty, whereupon the defendant, who held a mortgage upon the property where the houses were in course of construction, entered into the following contract:

“ Bbooklyn, H. Y., October 13, 1903.
“ Cboss,- Austin & Ibeland Lumbeb Company,
“ Grand Street & Gardner Avenue,
“Brooklyn, H. Y.
“ Gentlemen.— Please deliver to Hr. Frank Brettell, of Ho. 230 Lefferts avenue, Richmond Hill, Long Island, trim, sash, doors, etc., as per contract, for four houses in the sum of Two thousand dollars (§2,000), and for five houses in the sum of Two thousand five hundred dollars ($2,500), required for houses he is building in Degraw street, near Albany avenue, Brooklyn, Hew York, and in consideration of the delivery of the aforesaid trim, sash, doors, etc., to the said Frank Brettell, and for the purpose of giving him credit for the same, I hereby guarantee, promise and agree to pay the amount in value of such trim, sash, doors, etc., upon demand.
‘RICHARD GOODWIH.’’

The materials called for for the $2,000 group appear to have been delivered and paid for. The plaintiff went forward with the work of manufacturing the materials for the second group, and had completed them to the value of $1,900, holding them in storage at the request of Brettell, when it came to the knowledge of the plaintiff that the latter had abandoned the work. The plaintiff then for the purpose of making.its claim as small as possible, ceased work on the order, and subsequently demanded payment of its claim for the materials which had been completed. The defendant, without denying liability, entered into an arrangement through his attorney for a delay in the payment of the claim pending a foreclosure of the mortgage upon the premises, but finally declined to carry out the agreement, and on the trial of this action and upon this appeal contends that he is not liable under the written guaranty above set forth on the ground that the agreement to pay was based upon the condition of delivery of the goods to Brettell.

We are of the opinion that the fair reading of this contract, in connection with the surroundings of the parties, forbids this narrow .construction, even in behalf of one who stands as a surety. The contract is that “ in consideration of the delivery of the aforesaid trim, sash, doors, etc., to the said Frank Brettell, and for the purpose of giving him credit for the same, I hereby guarantee,” etc. The materials demanded by the contract had to be manufactured. The plaintiff was not willing to manufacture them and rely upon Brettell taking them, and it was for the purpose of inducing the plaintiff to manufacture and deliver the same that the guaranty was made, and the fact that the plaintiff acted in good faith in manufacturing the goods, up to the time that it learned that Brettell had defaulted in his contract of construction, and then stopped work to prevent the loss being larger than necessary, entitles it to consideration here. The evidence shows that the plaintiff was ready to deliver the goods; that it merely held them in storage at the request of Brettell until he should need them, and that the plaintiff was willing at all times to deliver the same to any one who was in a position to pay for the same, and thus relieve the defendant, "and we are of the opinion that this constituted such a constructive delivery as to hold the defendant liable. Under the guaranty; if the plaintiff had actually delivered the goods to Brettell, and the latter had sold them to a third party, the defendant would have been liable. He is in a much better position now; he has only to pay the amount due and come into the ownership of the property, and having fairly contracted for just what has occurred, he is in no position to avoid his obligations upon a narrow construction of the language of the contract, and thus defeat its spirit.

The judgment and order appealed fr.otn should he affirmed.

Hirschberg, P. J., Jenks, Gaynor and Rich, JJ., concurred.

Judgment and order affirmed, with costs.  