
    Kellogg et al. v. Farquhar et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    Principad and Surety—Discharge ot Surety.
    Defendant became surety for an agent who engaged to sell goods for plaintiff. The bond recited that the agency was to sell goods “in the territory of New York and Brooklyn. ” A letter from the principal to plaintiff, inclosing the bond, stated that the latter was to sell no goods that would conflict with the principal’s trade in New York, Brooklyn, or Jersey City, “or come in competition” with him; and the principal agreed to’handle no other goods but plaintiff’s. FLeld, that the principal was not restricted to the cities named as his territory, but was simply given exclusive rights in those cities, and therefore the defendant was not exonerated from liability by the fact that the principal was allowed to sell goods elsewhere. ,
    
      Appeal from circuit court, Erie county.
    Argued before Barker, P. J,, and Dwight and Macomber, JJ.
    
      E. V. Chamberlain, for appellants. Spencer Clinton, for respondents.
   Macomber, J.

The instrument upon which this action is brought is a bond, except that it has no seal. Its recital is that the plaintiffs have entered into an agreement with the defendant Farquhar, whereby the latter was to sell brooms, manufactured by the plaintiffs, in the territory of Hew York and Brooklyn, and that Farquhar was to pay for each shipment of brooms within 90 days. The condition of the obligation is as follows: “If the said George Farquhar, Jr., shall perform on his part all the terms of his said agreement with Kellogg and McDougal, and shall in all respects perform his legal duty toward them, and shall pay for said brooms within ninety days from the date of each and every shipment of said brooms to him, [said George Farquhar, Jr.,"j then this obligation to be void; otherwise, to remain in full force and effect. ”

The only defense set forth to the claim made by the plaintiffs which is-worthy of consideration is the plea that the territory where Farquhar was-authorized to sell brooms, namely, Hew York city and the city of Brooklyn,, was; without the consent of surety Clapp, extended so as to include Jersey City and Hoboken, in the state of Hew Jersey. A proper construction of the-agreement made by the surety, however, shows that such a defense is un-availing. It is founded upon a misconstruction of the contract of the parties.There was no prohibition against Farquhar selling the brooms in whatever" market he might find. So far as the sales were restricted at all by the terms-of the agreement, the restriction lay upon the plaintiffs, who had agreed not-to ship their brooms to any other sellers in the cities of Hew York and Brook-lyn. There was no restriction placed upon the region in which Farquhar might'operate. In the letter inclosing to the plaintiffs the instrument sued upon,, it is stated as follows: “You may ship all brooms direct to me at Wallabout" market, Brooklyn, and to sell or ship to no other house or houses who may, in any way, conflict with my trade in Brooklyn, Hew York, and Jersey City, or come in competition with me, and that all brooms shipped tome by you are to be invoiced by you at ninety days, at current selling prices, &c.; * * » and finally that I am to handle no other brooms but your make. This agreement to continue in force as long as it is mutually satisfactory. My territory to comprise the cities of Hew York, Brooklyn, and Jersey City.” There is a) verbal discrepancy in the recital of the agreement and the letter accompanying its delivery. In such recital the words “Jersey City” did not occur. This is, however, quite unimportant, because there is nothing in the agreement which restricted the sales made by Farquhar to any locality whatever. In the absence of a positive restriction thereon, the surety is not in any position to interpose the obligation now, that his undertaking was not to answer generally for the failure of Farquhar to pay for the several shipments at 90 days. Much of the law relating to principal and surety, and to the cases in which a-surety is absolved where the terms of the contract have been departed from, has been laid before us in an elaborate brief of the appellants’ counsel. But-if the foregoing views are correct, many of the citations made by him are inapplicable. When the rights of a surety are to be determined by the construction of the paper which he has executed, he has no immunities that are-not common with all persons sustaining contractual relations with others. Belloni v. Freeborn, 63 N. Y. 383. This is the only matter in the defense of sufficient moment to require any comment. The judgment appealed from should be affirmed» All concur.  