
    The President and Fellows of Harvard College, Appellant, v. Otto Kempner and Otto H. Droege, Respondents.
    Second Department,
    April 23, 1909.
    Principal and surety — undertaking that student will pay sums due to college—liability of sureties — infancy of principal—failure of foreign incorporated college to register here.
    Persons who executed a bond to a college guaranteeing the payment of such sums as shall become due from a certain student ‘ ‘ for the rent of any room which may be assigned to him in accordance with his application before he becomes a student in the university” are liable on the undertaking although their principal having engaged a room for the last year of his course, did not return to college and use the same, if the college authorities in order to reduce the damage have used reasonable effort to rent the room to other persons without success.
    The sureties cannot escape liability upon-the theory that they were bound only for the rent of rooms assigned their principal before entering the university, as the contract is not capable of that construction.
    The sureties cannot escape liability because the college, a foreign corporation, is not registered in this State, as required by the General Corporation Law.
    Nor is it a defense that the principal was an infant at the time he engaged the rooms.
    Appeal by the plaintiff, The President and Fellows of Harvard College, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendants, rendered on the 22d day of October, 1908, dismissing the complaint at the close of plaintiff’s evidence.
    
      Philip H. Leifert [Sigismund B. Levy with him on the brief], for the appellant.
    
      Otto Kempner, for the respondents.
   Woodward, J.:

The defendants in this action made and delivered their certain bond or obligation to the plaintiff on the 29tli day of April, 1903, the condition of the bond being that “if the above bounden obligors, their heirs, executors, and administrators, or either of them, shall well and truly pay, or cause to be paid, promptly, unto the said President and Fellows of Harvard College, * * "" the whole of such sum or sums of moneyas shall become due to the said President and Fellows from Henry Kempner, * * including all such sums as shall become due to said President and Fellows for board or gas, or for money advanced therefor, * * * together with such sums as may be charged to him * * * for the rent of any room which may be assigned to him, in accordance with his application, before he becomes a student in the University; then this obligation shall be void,” etc. Henry Kempner made his application and entered the university in the fall of 1903, and remained a student up to June, 1906. On the 28th day of February, 1906, in accordance with the usages of the university, Henry Kempner entered into a written contract with the plaintiff for room No. 49 in Matthews Hall for the academic year of 1906-1907, agreeinguto pay therefor the sum of $245. For some reason Henry Kempner did not return to college for the academic year of 1906 and 1907, and the plaintiff after vainly trying to rent the room for. the account of Henry Kempner, and failing so to do, charged his account with this sum and the present action is brought to recover the contract price of the room from the defendants. Upon the tidal of the action the plaintiff proved these facts and defendants moved to dismiss the complaint on the grounds that the plaintiff had failed to make out a cause of action ; that the plaintiff had failed to establish any contract with the defendants; that the plaintiff was a foreign corporation and that it had not shown that it was registered, as required by the General Corporation Law; that the plaintiff by its bill of particulars stated that the defendants’ agreement with the plaintiff was to reimburse the plaintiff and to pay said plaintiff the sums that may be due it from said Henry Kempner for board or gas or money advanced while said Henry Kempner was a student in the university conducted by the plaintiff, and that the evidence introduced does not show that the said Henry Kempner used any board or gas during the time he was a student in the college; that the contract introduced in evidence was made by Henry Kempner while an infant, without the knowledge of the sureties. Decision was reserved, and the defendants put in their evidence, and then the learned court rendered a decision dismissing the complaint.

"We are not informed upon what ground the learned court based its conclusion, but we are of the opinion that it was error to dismiss the complaint. The bond in evidence clearly shows a contract between the plaintiff and defendants; it ivas entered into for the purpose of securing to the plaintiff the payment of the expenses of Henry Kempner during his college course, and the. whole defense is a quibble. The young man, evidently following tile usages of the university, and intending to continue his studies, entered into a .contract for his room for the academic year of 1906-1907, just as the bond fairly contemplated should be done, and the mere fact that for some reason he was prevented from returning does not relieve his sureties from the obligation of paying for the rent of the room, the plaintiff having made reasonable efforts to reduce the damages. A fair sample of the reasoning indulged in to support the judgment is found in the contention that, under the terms of the bond, the defendants are not liable, because the room was not assigned to him before he became a student of the university. The term of the bond, it will be remembered, was that it was to secure the payment, among other things, for the rent of any room which may be assigned to him, in accordance with his application, before he becomes a student of the University,” and the respondents point out in their brief that this room “ was not assigned before Kempner became a student of the University.” But the contract is not for the room assigned tó him before he enters the university, but for “any room which may be assigned to him, in accordance with his application” to become a student of the university. That is the only intelligent construction of the language used, and it is fairly what the contract meant to intelligent men when it was made, and it should not be defeated by any forced construction.

It is not necessary to discuss the suggestion that plaintiff, in accepting a surety bond, is within the provisions of the General Corporation Law of this State, or that the defendants have any'standing to raise the question of Henry Ketnpner’s infancy. The very object t of the bond was to secure the plaintiff against the contracts of infants; was to provide against losses due to irresponsible students. The defendants undertook to say that they would see that his contracts were carried out, within the limits of his obligations as a student of the university, and if Henry Kempner made a contract within the scope of the authority conferred under the bond, they are bound to meet the obligation. ¡'

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.

Jenes, Gaynor, Bdrr and Kioh, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. 
      
      See Laws of 1892, cliap. 687, § 15, as amd. by Laws of 1901, chap. 538, and Laws of 1904, chap. 490.— [Rep.
     