
    Helios-Upton Company, Respondent, v. Orlando F. Thomas and Edwin M. Post, Appellants.
    
      Guaranty of payment—what memorandum is sufficient—what sufficiently stales the consideration—delivery of goods under an oral agreement to give a guaranty of the payment therefor—proceeding against the guarantor in the first instance is not necessary — a condition not complied with through the fault of the vendee—an allegation of compliance does not preclude proof of such fault as an excuse for non-compliance.
    
    In consideration of the oral agreement of the firm of Thomas & Post to guarantee the payment of the purchase price, the Helios-Upton Company sold to the General Carriage-Company five storage batteries. The terms of sale provided that the batteries should be paid for at the expiration of sixty days, provided that they were then in good operative condition.
    After the delivery of the storage batteries the storage battery company wrote the following letter to Thomas & Host:
    “Gentlemen.—In accordance with our understanding with you, we have shipped the General Carriage Company five of our No. 3 Storage Batteries. These batteries are our property and are to remain so until paid for, it being understood that you agree that we shall be paid for these fivp batteries at the rate of §498.00 each delivered in New York, sixty days after date of shipment, providing the batteries are at that time in good operative condition. Kindly confirm this understanding to 197 Water Street, New York.”
    Thomas & Post replied with the following letter:
    “ Gentlemen.— We are in receipt of your favor of March 2nd, regarding • purchase of five No. 3 sample batteries, and your understanding is the same as our own.”
    The carriage company having failed to pay for the batteries at the expiration of the term of- credit, the storage battery company brought an action against Thomas & Post to recover the purchase price thereof, the action being based upon the theory of a guaranty and not of an original promise by Thomas & Post.
    
      Held, that, considered as a guaranty, the memorandum was sufficient within the Statute of Frauds;
    That the consideration therefor, although not definitely stated, was fairly to be inferred from the writing;
    That the fact that the storage batteries had been delivered before the execution of the written contract, did not, in view of the prior parol agreement to give a guaranty, render such contract invalid or without consideration;
    That the guaranty was one of payment and riot of collection, and that the storage battery company was not obliged to proceed against the carriage company in the first instance;
    
      That the rule of strictissimi juris applicable to contracts of guaranty did not relieve the guarantors from liability if, through the fault of the carriage company, the storage batteries were not in good operative condition at the expiration of the time specified in the terms of sale;
    That the plaintiff was not precluded, by an allegation in the complaint that the batteries were in good working order at the expiration of the trial period, from showing that they were not in that condition because of their misuse by the carriage company and by no fault of the plaintiff.
    Ingraham, J., dissented.
    Appeal by the defendants, Orlando F. Thomas and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of October, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of November, 1903, denying the defendants’ motion for a new trial made upon the minutes.
    
      Alfred H. Holbrook, for the appellants.
    
      Herbert C. Smyth, for the respondent.
   Laughlin, J.:

The plaintiff was a corporation engaged in the manufacture and sale of storage batteries. Its plant was in the city of Chicago. In the latter part of February, 1901, the General Carriage Company, a corporation engaged in the business of letting electric automobiles for hire in the city of New York, negotiated the purchase of five Ho. 3 storage batteries of the plaintiff, the purchase price of each being $498. The appellant Orlando F. Thomas, the treasurer of the General Carriage Company, conducted these negotiations in its behalf. He and the appellant Post were then copartners as stockbrokers under the-firm name of Thomas & Post. The General Carriage Company desired to make the purchase subject to trial and on credit. The information which plaintiff had concerning the financial condition of the General Carriage Company rendered it inadvisable to make the sale on these terms, and its representative so stated to Thomas, and suggested that if the firm of Thomas & Post would guarantee the payment the plaintiff would make the sale. Thomas agreed that such guaranty would be given by his firm. By the terms of sale the batteries were to be paid for at the expiration of sixty days, provided they should then, be in good operative condition. Part of the batteries were shipped from Chicago on the 19th and the remainder on the 22d or 23d of February, 1901, and they were delivered to the purchaser in New York about two weeks later. On the ,2d day of March, 1901, the plaintiff wrote the firm of Thomas & Post as follows:

“ New York, March 2, 1901.
“ Messrs. Thomas & Post,
“ 71 Broadway, N. Y.
“ Gentlemen.— In accordance with our understanding with you, we have shipped the General Carriage Company five of our Ho. 3 Storage Batteries. These batteries are our-property and are to remain so until paid for, it being understood that you agree that we shall be paid for these .five batteries at the rate of $498.00 each delivered in New York, sixty days after date of shipment, providing the batteries are at that time in good operative condition. Kindly confirm this understanding to 197 Water Street, New York.
“ Yours truly,
“ HELIOS-UPTON CO.
“ King Upton.”

Thomas & Post replied as follows :

“ New York, March 6, 1901,
“ Helios-Upton Company,
“ 197 Water St.,
“New York City.
“ Gentlemen.— We are in receipt of your favor of March 2nd regarding purchase of five No. 3 sample batteries, and your understanding is the same as our own.
“ Yours truly,
“ THOMAS & POST.”

It is alleged that the batteries were in good operative condition after the expiration of sixty days and that the General Carriage Company refused and neglected after demand to pay therefor. The plaintiff seeks to recover the value of the batteries, together with interest, of'.the members of the firm of Thomas & Post upon the contract evidenced by these letters. The appellants contend that the contract does not constitute a sufficient memorandum in writing to take the case out of the operation of the Statute of Frauds and is not enforcible. The complaint was framed and the action was tried upon the theory that the contract was a guaranty.

We are of opinion that the action might well have been maintained on the theory that this was an original promise and that the judgment could be sustained upon that view. However, considered as a contract of guaranty, the memorandum in writing was sufficient within the Statute of Frauds (Laws of 1897, chap. 417, § 21). The written contract is not without consideration or invalid merely because the property had been delivered prior to its execution. The parol contract to give a guaranty was made prior to the shipment, and it having been subsequently reduced to writing to enable proof thereof to be made, that is sufficient. (Ward v. Hasbrouck, 44 App. Div. 32; Oppenheim v. Waterbury, 86 Hun, 122 ; Smith v. Molleson, 148 N. Y. 241.) The consideration, although not definitely stated, may fairly be inferred from the written contract. It is manifest that it was a guaranty of payment and not of collection, so that the plaintiff was not obligated to proceed against the General Carriage Company.

The principal contention of the appellants is that the rule of strictissimi juris, applicable to the construction of contracts of surety and guaranty, relieves them from liability unless the batteries at the expiration of the period specified were in fact in good operative condition, even though their not being so was attributable solely to misuse by the purchaser. If they are right in this contention the judgment cannot be sustained,, for it. is undisputed that at the expiration of sixty days the batteries were not all in good operative condition. The learned counsel for the respondent rightly contends that this would be an unreasonable construction of the contract. The storage capacity of the batteries was 100 amperes, said to be sufficient to propel an. automobile of size suitable for the battery twenty-five miles. The. evidence on the part of the plaintiff showed that the batteries, having been properly tested and found to be of the required capacity, were shipped in good order, and if properly used would have remained in good order for a much longer period than sixty days —in fact, for a year or more. The representatives of the General Carriage Company were verbally informed that the batteries should be charged and recharged at an amperage not greater than twenty-five amperes per hour, and of the destructive effect of charging them at a higher amperage or more rapidly, and printed instructions to the same effect accompanied the shipment. The plaintiff gave evidence tending to show that the batteries were frequently charged by the General Carriage Company at an amperage much higher than fifty amperes per hour; and. the evidence shows without substantial controversy that while the batteries were in use during the trial period they were frequently, if not customarily, charged by the employees of the purchaser at a higher amperage per hour than the maximum rate specified in the printed and" verbal instructions. The evidence is also practically undisputed that the effect of charging batteries at a higher rate than that for which the construction of the apparatus is suitable is that the active material in which the current is stored will be separated and dropped out of place, thus reducing the capacity of the battery. The evidence introduced on behalf of the plaintiff, which was controverted by the defendants, tended to show that this was the condition in which the batteries were found after the expiration of the trial period, and that it was caused by overcharging contrary to the instructions, but that otherwise the batteries had been properly constructed and were in proper condition. The learned court submitted to the jury the question as to whether the defective condition of the batteries was owing to faulty construction or was caused by misuse on the part of the General Carriage Company. The jury, upon ample evidence, found in favor of the plaintiff.

The point is also taken that the plaintiff, having alleged that the batteries were in good working order at the expiration of the trial period, cannot be permitted to recover on the theory that they were not, but that it was through no fault of the plaintiff. Some of the evidence was received without objection on this ground being taken, but finally appellants objected, and I think they preserved their right to present the point. The complete answer to it is, however, that the batteries were in good working order within the intent and. meaning of the contract, that is, so far as their manufacture and practicability were concerned.

The appellants also claim that the time for performance óf the original contract was extended by the parties without their knowledge or consent. This was also a question of fact, depending upon conflicting testimony which was submitted to the jury.

Edward R. Thomas was joined as a party defendant upon the supposition that he was a member of the firm of Thomas & Post at the time they made the contract. It appears that the reply letter of Thomas & Post forming part of- the contract was Written on a letterhead containing the name of Edward R. Thomas as a member of the firm. He had been a member of the firm prior to that time, but severed his connection with it for one year, and became a member again on the first day of April after the making of the contract. These, facts were proved upon the trial without objection and were stated in substance by the appellants in their answer. Upon proof being made that Edward R. Thomas was not a member of the firm at the time, counsel for the plaintiff offered to discontinue as to him, and the complaint as against Edward R. Thomas was dismissed, with costs. The appellants did not claim, and in the circumstances could not well claim, that they were taken by surprise in having the action continued against them. It is difficult to see how they have been' prejudiced; and we think in the circumstances the variation between the pleading and the proof is not so material as to justify a reversal.

If follows that the judgment and order should be affirmed, with Costs.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred ; Ingraham, J., dissented.

Judgment and order affirmed, with costs.  