
    George E. Beakes et al., Resp’ts, v. Luiz A. Da Cunha et al., Ex’rs, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Guaranty—Consideration.
    The delivery of merchandise upon the faith of a guaranty of payment is a sufficient consideration for the guaranty.
    2. Same.
    One K., the son-in-law of defendants’ testator, had been dealing with plaintiffs, who did business under the firm name of George E. Beakes. • Upon security being required the deceased went with K. to see one of the plaintiffs, and executed a guaranty whereby he became responsible to “ George E. Beakes, Esq.,” for all milk he might sell to K. Held, that in view of all the facts, it was evident that the guarantor intended to become liable for milk sold by the plaintiffs; that the guaranty w'as available to the firm, and that the addition of the word “ Esq.” at the end of the name did not deprive the guaranty, of such operation.
    3. Same—Notice—Evidence. .
    The guaranty required notice to be sent to the guarantor monthly if payment for the previous month’s goods had not been made. Held, that notice by mail was as effectual as a personal notice, and that parol proof of an understanding that the notices might be sent by mail was not" inadmissible as tending to alter the contract.
    Appeal from order confirming report of referee and from judgment entered thereon.
    
      E. H. Benn, for app’Jts; R. L. Swezey, for resp’ts.
   Van Brunt, P. J.

The reference in question was of a claim against the estate which was disputed and rejected by the executors, and then referred under the statute providing for a reference of such claims.

The evidence showed that the deceased, Charles Gedney, in November, 1886, executed a guaranty by which he agreed to become responsible to George E. Beakes for all milk he might send to Chester L. Ketchum on his order, requiring notice to be given on the 20th of each month if payment for the previous month’s milk had not been made up to that time. The plaintiffs, who were copartners doing business at Sidney Centre, Delaware county, New York, under the name of George E. Beakes, had been dealing with Ketchum some time prior to the date of the guaranty, and continued to deliver him milk after that time. Ketchum paid for all that he got until May, 1887, when he failed to pay in full, and from that time until December 31, 1887, he failed to pay in full, upon which date there was due from Ketchum $2,447.41.

Charles Gedney, the guarantor, died on the 30th of December, .and thereafter, on the 9 th of February, 1888, George E. Beakes presented the claim to the executors, which was refused. In the submission or agreement to refer it is stated that the claim is by George E. and Charles H. C. Beakes, as copartners, and by the evidence taken before the referee it was shown that the milk was all sold by them as such copartners to Ketchum.

The referee having reported in favor of the claim various obj ections are raised upon this appeal.

The first is, that there was no consideration for the guaranty. It is clear that this objection is not well taken, because tire delivery of the merchandise upon the faith of the guaranty formed a sufficient consideration.

The next objection raised is that the guaranty was to one man and is not available to anybody else or to a firm of which he was a member, and it is claimed that the case of Barns v. Barrow, 61 N. Y., 39, is decisive upon this question.- In that case it appeared that Barns, one member of a firm, agreed to furnish goods to a factor, and the defendant, Barrow, guaranteed that the factor should faithfully account for the proceeds of the sales. The goods were furnished to the factor by a firm of which Barns was a member, and the factor failed to account. The court held that the guarantor was not liable because the guaranty was not to the firm, and the goods were not furnished by the individual.

In that case it is distinctly admitted that where there is any evidence showing that the guaranty was taken for the benefit of a firm, although addressed to one. of its members, the firm can recover upon it, and that this fact may be shown by parol evidence.

Applying this rule to the evidence in the case at bar, we find it established that Ketchum, a son-in-law of Gedney, had been receiving milk from the plaintiffs’ creamery, at Sidney Centre, which, as has been stated, was conducted by the plaintiffs under the name of George E. Beakes; that Ketchum solicited his father-, in-law to becomé his surety for goods to be supplied him from such creamery; that Ketchum knowing that one of the plaintiffs, Charles H. C. Beakes, was engaged in business in New York, took his father-in-law down to see him, and there Mr. Gedney and Mr. Beakes settled upon the terms of the agreement; whereupon, the latter sat down and wrote out the agreement addressed to George E. Beakes, that being the name under which the business was conducted ; and thereupon Gedney signed the paper and left it with Charles H. 0. Beakes.

It is clear from this evidence that Gedney understood that this milk was to be furnished from the creamery at Sidney Centre, and the guaranty was written out in the name of the individual in • whose name that business was being conducted, simply because it was being conducted in that name.

The guaranty was clearly intended to be given to secure payment for milk so delivered; a clear intention being established upon the part of the guarantor to be liable to George E. Beakes (whatever that name might include) for milk delivered in this particular business. These facts clearly distinguish the case from that of^ Barns v. Barrow, above cited, where there was nothing to indicate that the guarantor intended to guarantee anything connected with the firm business, but that it was an individual contract disconnected from any firm business. In the case at bar it is evident that the intention was to guarantee payment for milk delivered from this creamery. It was addressed to the firm name under which the creamery was conducted; and the mere addition of the word “ Esq.” at the end of the name cannot deprive the guaranty of the essential features which the circumstances show it was intended by the parties to possess.

It is further urged that the conditions of the guaranty were not complied with, in that notice on the 20th of each month of failure to pay was not given.

There was evidence tending to show that notices were mailed on the 20th of each month to Gedney, and received on the 22nd or 23rd. But it is urged that such a method was not mentioned in the contract, and therefore a personal notice was required. We do not understand such to be the rule in a contract of this kind. A notice by mail is as effectual Us a personal notice. The notices appear to have been sent and received; and the interpretation placed by the parties upon the contract seems to coincide with the proof offered that it was the understanding that these notices might be given by mail.

It is urged that this is parol proof, and that nothing can be supplied or added' to a contract by parol in a case like this where, by the statute of frauds, the contract is required to be in writing.

• We think, however, that this objection is not well takep. It was no alteration of the contract which was established by show-, ing that the notices should be sent by mail. It was merely evidence as to how the parties understood the terms of the contract were to be complied with. It could not for a moment be insisted that if an address for the delivery of the notices had been given by the guarantor that the delivery of such notice at such address would, not be sufficient, and this would be just as much adding to the guaranty as an understanding that the notices might be mailed to a specific address, as was established by the evidence.

We think, under the circumstances, that the referee was right, and the order should be affirmed, with costs.

Daniels and Brady, JJ., concur.  