
    BEAGLE et al. v. CABLE.
    (Supreme Court, Appellate Division, Third Department.
    November 14, 1900.)
    Guaranty—Time for Payment.
    L. contracted to cut the timber off the land of O., and manufacture it into lumber, he to have therefor half the proceeds, when the lumber was sold by C., which was to be when there was a suitable market, certain advances to be made in the meantime. B. then contracted to do the sawing for L., he to have a certain amount per 1,000 feet sawed, half to be paid as the work progressed, and the balance “when the remaining sum shall become due,” as per the contract of C. with L. C. then guarantied the payment of the saw bill “provided for in the foregoing contract, upon the terms and conditions therein imposed.” Held, that though L. broke his contract with B. by furnishing only part of the logs to saw, and paid only half the saw bill for those sawed, B. could not recover the other half of C. till the sale of the lumber.
    Appeal from special term, Delaware county.
    Action by Harvey Beagle and others against Edwin B. Cable. From a judgment on the decision of the trial court for plaintiffs, defendant' appeals.
    Reversed.
    On the 9th day of September, 1897, the defendant and one Buckbee, being then the owners of a tract of woodland, all the timber upon which they desired to cut and fit for market, so far as it was suitable for that purpose, entered into an agreement in writing with Leg & Eggleston, by which the latter agreed to cut and manufacture the said timber into lumber, ties, and posts, and deliver the same at Beers’ Switch, a railroad station, on or before July 1, 1898. Lee & Eggleston were to receive in full payment for their services one-half the proceeds of the manufactured timber. By the terms of the agreement, the title and possession of the property was to be and remain in Cable & Buckbee, Cable was to have the exclusive right to sell and market the property when in condition to sell, and receive the pay therefor, and one half of the cash, when received, was to be retained by Cable & Buckbee, and the other half paid to Lee & Eggleston, less all advances made by Cable to them on the job. As fast as 1,000 ties were sawed, $50 per thousand in number was to be advanced to Lee & Eggleston, and when all the hemlock saw logs were delivered in the mill yard $1 per thousand was to be advanced, and when all the pine logs were so delivered $2 per thousand. In case satisfactory market could not be found for the lumber, ties, etc., on or before July 1, 1898, then the lumber was to be stacked upon the mill yard, and the ties, etc., on the railroad land provided at or near Beers’ Switch, until such time as a suitable market could be obtained for the property. On the 3d November, 1897, Lee & Eggleston entered into a contract in writing with one Apply, whereby the latter agreed to move his sawmill upon a selected site on the lot, and do all sawing required to be done in and by the contract of September 9, 1897, for the price for the ties of 4 cents each, and for the lumber of $2 per thousand, payable as follows: When 1,000 ties were sawed and counted, $20, and a like sum as often as a like number was sawed and counted, and $25 when 25,000 feet of lumber was sawed and counted, and a further like sum when a further like quantity was sawed and counted. The remaining portion for sawing was to be paid as follows: Two cents each for the ties when they were counted and accepted by tlie railroad in conformity to the contract of September 9th, and the remaining $1 per thousand for the lumber when the entire job shall be finished up in conformity with the contract of September 9th, and when the remaining sum shall become due as per the terms of that contract. At the same time, and as a part of the transaction with Apply, the defendant made and indorsed upon the contract the following: “Walton, N. Y., November 3, 1897. Ear value received, I hereby guaranty the payment of the saw bill provided for in the foregoing contract upon the terms and conditions therein imposed. E. B. Cable.” Thereafter Apply moved his sawmill upon the lands, and on the 18th December, 1897, transferred all bis interest in the contract to the plaintiffs, who agreed to do all the sawing required to he done by Apply. The plaintiffs, proceeded with the work, and sawed lumber to the amount of 82,668 feet, and railroad ties to the number of 6,903, when Lee & Eggleston refused to furnish logs for sawing, and forbade the plaintiffs from proceeding with the further-performance of the contract, and no further sawing was done. The plaintiffs were ready and willing to continue, and up to that time had performed the contract with Lee & Eggleston. The latter then abandoned their contract with Cable & Buckbee, leaving a large portion thereof unperformed. The-price for sawing the lumber and ties that were sawed amounted, according to-the rate specified in the contract, to the sum of $441.46. The plaintiffs had received from the defendant on account of the sawing, up to the time they stopped, the sum of $215, leaving a balance of $226.46, which has not been, paid. This action was commenced in August, 1898, for the recovery of such, balance from the defendant on his guaranty. It was held by the trial court that, for any sawing done by the plaintiffs under their contract with Lee & Eggleston for which they could recover of them the contract price, they could' recover the same from the defendant under the terms of the guaranty. Judgment was therefore ordered for the plaintiffs for the balance of $226.42 and' interest.
    Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ.
    Neish & More, for appellant.
    Marvin & Hanford, for respondents.
   MERWIN, J.

The recovery here is on the theory that Lee &. Eggleston are liable to the plaintiffs and therefore the defendant is. liable on his guaranty. The defendant does not guaranty that Lee & Eggleston should perforin their contract. He only guaranties the-payment of the saw bill upon the terms and conditions imposed in. the contract. According to those terms, a portion of the saw bill became due from time to time, according as the work progressed., That amount has been paid by the defendant, or substantially that amount. The balance of the saw bill for the ties was to be paid, when the ties were counted and accepted by the railroad company. That is not shown to have been done. The balance of the saw bill for the lumber was to be paid when the entire job should be finished up in conformity with the contract of September 9th between Cable & Buckbee and Lee & Eggleston, and when the remaining-sum should become due according to the terms of that contract. That evidently referred to the division to be made upon a sale of' the property. That contingency has not happened. The job has not been finished, and it is not shown that either the ties or the lumber that the plaintiffs sawed has been- sold or marketed. So that, if the terms of the contract are to be followed, the recovery cannot be sustained.

It may be that the plaintiffs could recover the amount from Lee & Eggleston, but such recovery would only be allowable by reason of the breach of the contract by Lee & Eggleston (Nichols v. Steel Co., 137 N. Y. 471, 487, 33 N. E. 561); and for such breach the defendant would not be responsible. The recovery in such case would be for damages for the breach. In Creamer v. Mitchell, 162 N. Y. 477, 486, 56 N. E. 977, the rule is said to be well settled that a guarantor is bound only by the strict letter or precise terms of his contract, and that the claim against him is strictissimi juris. The recovery here would seem to be in contravention- oí that rule. The-defendant is made to bear the consequences of a breach by Lee & Eggleston that he did not covenant against. Under the original-contract, he was the party who had the exclusive right to sell the-property, and then divide the proceeds. He had the right to expect that as to the balance of the saw bill, over and above the advancements to be made as the work progressed, he would not be called upon for payment under the guaranty until he had funds from the sale of the property, as contemplated in the original agreement, which is referred to in the subsequent contract, and its provisions adopted. The trial court erred, I think, in charging defendant with the balance of the saw bill, and the judgment, therefore, must be reversed.

Judgment' reversed, and new trial granted, costs of appeal to the appellant to abide the event. All concur.  