
    JAMES McCREERY, et al., Respondents, v. WILLIAM F. DUNCAN, Appellant.
    Evidence, res gestae, entries in boolcs, independent recollectionof.—Delivery, sufficiency of evidence of.—Application of payment, presumption of— meeting of minds, principle of satisfied.— Verdict not excessive.—Complaint, averment of performance of condition sufficient.
    
    In an action on a guarantee of the payment of a certain amount, viz., $350, of a third party’s bill for costumes, on condition of delivery of the full bill on receipt of the guarantee, the court held as follows:—•
    Conversation's between the third party and the vendor in the absence of the guarantor, are competent to prove a verbal direction as to the place where delivery should be made. '
    The question to a witness who received moneys, kept the books, made the entries, and knew the correctness of the amount credited, “ tell us what the amounts were and the dates,” calls only for the witness’ memory of the actual facts.
    Circumstantial evidence, and as part of it, the conduct of, and payment by the vendee, is sufficient evidence of the delivery.
    Various articles were sold on different dates, the costumes being the last, and the vendee did not apply the money paid, leaving the vendor at liberty to make the application; it is presumptive, therefore, that such application was not made so as to destroy the benefit the vendor held in the guarantor’s promise.
    Where there is no mistake as to the actual words of a written instrument, and the party to whom it is given parts with value on the faith of its true legal construction, in conformity with its provision, the legal requirement that the minds of the parties to a contract must meet, is satisfied.
    The whole bill after delivery of the costumes, was $1,143. - Of this, $550 was for the costumes, $535 paid by the vendee was properly applied on the articles other than the costumes, leaving $608 due, $350 of which defendant guaranteed, at which sum the damages were assessed. Held, not excessive, though at the time of the guarantee the bill was but $743, as the excess of the total bill was for the costumes only.
    An averment that plaintiff on receipt of the guarantee, sold and delivered to the third party certain goods of the value of (specifying the value), is sufficient as an averment of performance of the condition.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.
    
      Decided July 2, 1886.
    
      Appeal by defendant from judgment entered upon verdict for plaintiff, as directed by the court, and from order denying motion for new trial made upon the minutes.
    
      Edward F. O’Dwyer, attorney and of counsel for appellant,
    argued :—I. There is no allegation in the plaintiffs’ complaint that they delivered the full bill of goods, and it is submitted that in this particular the complaint is fatally defective and defendant’s motion to dismiss was proper and should have been granted (Nelson v. Bostwick, 5 Hill, 37 ; Douglass v. Rathbone, 5 Ib. 143 ; Tooker v. Arnoux, 76 N. Y. 397 ; Abbott’s Trial Ev. 474, §8).
    II. It was error to allow the witness Julia A. Wells to testify to conversations had with Miss Livingston in the absence of the defendant, and defendant properly excepted to the ruling permitting such testimony. The witness Paul testified to the contents of the books of the plaintiffs from a memorandum he had made ; the books could have been produced by the plaintiffs but were not; Paul testified that all his knowledge was derived from an examination of plaintiffs’ books, and against defendant’s objection that such testimony was incompetent, the court below allowed the witness to continue. The plaintiffs had possession of their books and were bound to produce them when suing a defendant who could not by any possibility have knowledge of the account they sought to bind him by.
    TIT Defendant’s letter of guaranty expressly stipulates that he will be responsible for $350 of Miss Living-. ston’s bill for costumes, provided the whole bill of goods is delivered. There is a distinction between costumes and dresses. Miss Livingston was an actress and required costumes in her business, and it clearly was the intention of the defendant to be answerable only for such costumes, the delivery of the balance of the goods being the condition of the guaranty. Dresses were not included in his liability. If this is the fact, then Miss Livingston hav: ing paid $535, and the costumes costing $550, the greatest amount under the plaintiff’s version of the guaranty that could be recovered would be $15 (Hayden v. Crane, 1 Lans. 181).
    IY. The defendant testified that at the' time of making the letter of guaranty he said he would see that Miss Livingston paid $350, and in pursuance of that statement wrote the letter of guaranty. “I gave it and meant to see that Miss Livingston would pay the bill to the extent of $350.” It is clear from this testimony that the minds of the parties never met and it was the province of the jury to say whether a contract had been made (Greenleaf Ev. § 49, pp. 69, 355).
    Y. It was an error to refuse to Set aside the verdict and grant a new trial. The amount of the verdict was excessive; from plaintiff’s testimony it appears that at the time the guaranty was given, the amount of the bill was $143 ; that $535 has been paid on account, thus leaving a balance due of $208. It cannot be contended, under the numerous decisions to the contrary, that the deféndant is liable for additions to the bill after the giving of the guaranty.
    
      Theodore F. Lozier., attorney and of counsel for respondents.
   By the Court.

Sedgwioic, Ch. J.

The action was upon the following instrument made by the defendant:

“Hew York, Oct. 18, 1883.
“Messrs. McCreery &Co., Gentlemen :—I will become responsible for $350 of Miss Flora Livingston’s bill of costumes, provided that you deliver to her on receipt of this letter, the full bill of goods. Bespectfully, yours, Wm. F. Duncan.”

On the trial it was assumed that the full bill of goods mentioned in the instrument, referred to costumes and other goods, which were to be sold at one time by the plaintiff to Miss Livingston.

. The merits of the case appear to be with the plaintiff, but certain legal questions made by defendant are to be considered.

There was no legal objection to the plaintiff’s giving in evidence the conversation of Miss Livingston in the absence of the defendant. That conversation was part of the contract of sale and delivery, which was referred to in the instrument on which the action was brought. And it was competent to prove at what place Miss Livingston verbally directed that the goods should be delivered. A delivery in pursuance of that direction would be a delivery to her.

There was no legal objection to the witness, Paul, giving a part of the contents of books that he kept for the plaintiffs, without producing the books. The defendant made no objection on that ground. That witness also knew the correctness of the amount of money credited to Miss Livingston, as entered in the book. He did not remember the dates, but he kept the book and himself made the entries. Indeed, the only question on this subject objected to by defendant’s counsel, called only for the witness’ 'memory of the actual facts.

The defendant’s counsel objected that there was no proof of the delivery to Miss Livingston of the goods sold to her. The circumstantial evidence, and as a part of it, Miss Livingston’s conduct and payments, were so significant that it would have been incorrect not to take this question from the jury, and the defendant did not ask to go to the jury on this part of the issue.

It was further objected that the testimony incontrovertibly showed that Miss Livingston had paid §535 of the bill charging for costumes §550, and that thereupon, the defendant could not be made liable for more than §15. The evidence seems to have been contrary to this. The various articles sold were ordered on different dates, the costumes being ordered the last of all. Miss Livingston did not apply the money she paid to any particular portion of the indebtedness, which left the plaintiffs at liberty to make the application, which presumably was not made to destroy the benefit they held in defendant’s promise.

The defendant’s counsel objected that defendant’s mind had not met the minds of plaintiffs on the point of whether his obligation was to be responsible that Miss Livingston should pay upon her bill $350 ; or to pay abalance of that amount, she having paid the rest. It is not objected that the law puts the latter construction upon the defendant’s agreement. He made no mistake as to the actual words of the agreement. He delivered it to the plaintiffs who, on the faith of its true construction, parted with their property. He is, therefore, liable according to its true construction.

A motion was made to set aside the verdict as excessive. This was placed upon the claim that thé amount of the bill at the time the writing was signed, was but $743, and that $535 having been paid on account, only $208 was due. This ground is not made good by the testimony, for by it the amount beyond $743, was for the only costumes ordered and the defendant was responsible only for what might be due for costumes.

The remaining exception to be noticed is to the refusal to direct judgment for the defendant on the complaint, the motion being made before any testimony was given. The claim was that the complaint did not show any cause of action. It was said to be defective, in not setting out the performance of the condition on which, according to the instrument, the defendant was to be responsible. The condition in the writing was 1 ‘ provided that you deliver to her on receipt of this letter, the full bill of goods.” The complaint averred “that the plaintiff thereupon on receipt of said promise of the defendant, &c., sold and delivered to said Flora Livingston, certain goods, &c., of the value, &c.” This would be sufficient, if there is a reasonable intendment in the complaint that the delivery was of all the goods sold. There is such an intendment. An assertion that on an occasion certain goods were sold, implies that that fully describes all the goods that were sold, when nothing preceding the assertion indicates a purpose of limiting the assertion to part of the goods.

The judgment and order appealed from should be affirmed, with costs.

Truax and O’Gorman, JJ., concurred.  