
    Chauncey N. Shipman & Co., Plaintiffs, v. Thomas Kelley, Defendant.
    
    (Supreme Court, Erie Trial Term,
    January, 1896.)
    Guaranty — Extension of time of payment.
    The taking by a creditor of a debtor’s note for the amount of his indebtedness raises a presumption that it was given and-accepted pursuant to an agreement that the time of the enforcement of collection of debt should be postponed until the maturity of such note, and operates as an extension of credit which will discharge one who-has guaranteed payment of the debt.
    Action upon a guaranty of payment for goods sold to a third! party; _
    _ A jury trial was by the parties waived,- and the issues joined were, upon an agreed state of facts, submitted to the court for decision. The liability of the defendant is sought to be sustained upon the terms contained in the following written instrument:
    “ Fór a valuable consideration I hereby guaranty to O. N.. Shipman & Go. the payment for all bills for1 coal shipped to said Harwoód & Irish at Skaneateles, N. Y., by 0. N. Shipman & Go., to the. amount of fifteen hundred dollars per month. The understanding between all the parties is that at no time shall there be standing more than three months’ shipment of coal.
    “ (Signed) T. Kelley.”
    Between April 13 and May 15, 1894, the plaintiff sold toHarwood & Irish coal of the agreed value of $910.74, being for a monthly balance, and this was the last dealing had between the parties. June 23, 1894, several notes were given, representing this amount, by Harwodd & Hish and accepted by the plaintiffs, payable at different times. Sufficient had been paid on said notes, September 1, 1894, to reduce the aggregate amount thereof to the sum of $760.43, which was secured by a note due November 8, 1894, and which when due, was reduced, by payment, to $500. At this time -two notes of $250 each were given, one due in twenty, and the other in thirty days. The first note was reduced by payment, and two notes given for a balance, which were finally discharged, by payment in full, January 8, 1895. The second nóte became due December 10, 1894, and on that day $50 was paid thereon, and a note for $200 given, due January 14, 1895. On the last-named date said note was taken up, and a new note for like amount given, due in one month. . After the last note became due, and oh the 25th of February, 1895, the plaintiffs drew a draft on Harwood & Irish for the balance due, and represented- by the nóte of $200 and interest, at three days’ sight, which was accepted by Harwood & Irish. February 27, 1895, but was not paid. The defendant had no knowledge of any of the notes. No money was paid to defendant for his gúaranty, a-nd the plaintiffs were not compensated- in money for granting any extension of the time of payment of the original debt or any of the notes. This action is brought against the defendant to recover the balance óf $.200 of the indebtedness for coal sold and-delivered to Harwood & Irish upon the guaranty quoted.
    ; Wood & Gibbons, for plaintiffs,
    F. E. Stone,, for defendant.
    
      
       Received too late for insertion in proper place.—[Rep.
    
   Lambert, J.

The defendant is a surety, and' the limit of his liability must be ascertained from the terms of the written undertaking. He assumed a burden -without .sharing in the benefits óf the subject of the contract, and, therefore, had the right to prescribe the exact terms upon which he entered into the obligation,—,to limit his liability either as to time, amount, or parties,— and,, having done this, he has a right to insist on his discharge from legal liability in case the terms imposed have not been observed. The meaning of the language used in the contract of guaranty is both clear and ascertained, and'the defendant is- entitled to the' application of a strict rule of construction. His liability depends iipon whether or not the plaintiffs- have, without his assent, done anything, either directly or by necessary implication, which maybe said to have varied the terms of the principal- contract for which he stood sponsor.- If.the plaintiffs have so far-departed from!- the ' terms of the original agreement by giving terms of credit not contemplated by the terms of the contract, then the defendant,' • even thóugh he may have sustained no injury thereby, will be-relieved from liability. By the terms of the ..undertaking, the defendant guaranteed the payment of all bills for coal, to the amount .of- $1,5.00 per month. The shipment of coal, the-.render-' ing of a bill therefor, and the nonpayment thereof by Harwood & Irish, subjected the defendant to an action for the recovery of the purchase price of the coal, provided the term of credit did not extend beyond the period of three months.

. By the terms of this condition we axe brought to the only question urged by the defendant in exoneration of liability: Did the taking of the debtor’s notes for the bill rendered for coal, and the renewals thereof, for balances remaining unpaid, from time to time, without the consent of the surety, discharge him from liability? If the giving of these notes, from time to time, suspended the plaintiffs’ right of action against Harwood & Irish for any given period, that would be such a departure from the terms of the defendant’s undertaking as would discharge him from liability. Dorlon v. Christie, 39 Barb. 610; Delaware, etc., Railroad. Co. v. Burkhard, 36 Hun, 57; Place v. McIlvain, 38 N. Y. 96; Parmelee v. Thompson, 45 id. 58; Hubbard v. Gurney, 64 id. 458; Auburn City N. Bank v. Hunsiker, 72 id. 252; Jagger Iron Co. v. Walker, 76 id. 521; Van Giessen v. Bridgford, 83 id. 348; City Nat. Bank v. Phelps, 86 id. 484.

Many of the cases cited hold that the giving and acceptance of the debtor’s note, due in the future, have the legal effect to extend the term of credit of the original indebtedness, and bar a right of action thereon during such period; while the cases of Parmelee v. Thompson, supra, and Graham v. Negus, 55 Hun, 440, decide that the mere acceptance of a note of the debtor, representing a pre-existing debt, in the absence of- an express agreement that the same be taken in extinguishment of the original debt, or any new consideration for the acceptance of the note, does not operate as an extension of the term of payment so as to bar a right of action thereon. Hndoubtedly, the rule that the taking of the note for a pre-existing debt, or as. a substitute therefor, operates as an extension of time, must have its foundation in contract, express or implied from the transaction, and this seems to be the doctrine of all the cases. The conflict arises upon the consideration of what constitutes- a valid contract for the extension or substitution. We see no substantial reason why the taking of a note or written obligation of the debtor for the amount, and as a representative of the debt, conditioned for future payment, should not give rise to the presumption that the same was given and accepted pursuant to an agreement that the time of the. enforcement of the collection of such debt be postponed until the maturity of such note or obligation. A debt being due, with the right of immediate action for its collection, the debtor tendering, and the creditor accepting, his'negotiable promissory note for the amount thereof, due. at a future day, there seems to be no substantial reason, in law or justice, why it should not be inferred,, as matter of fact, that the debtor requested, and the creditor granted, forgiveness of immediate payment.

Assuming the inference of'contractual relation from the transaction of the delivery and acceptance of the note-or obligation of the debtor, the reason then assigned to defeat the validity of such a contract, by some of the cases cited, is that there is an absence of present consideration to support it; that, in giving such a note or obligation, there is wanting the resulting benefit- or disadvantage essential in the law to support a promise.- In this conclusion we are unable to agree. While the debtor might be made liable for the debt under prior contract relations, he could' not be compelled to acknowledge his indebtedness by a higher grade of evidence such as is furnished by a written obligation. In this the creditor might be benefited. Again, the availability of a negotiable note-over that of an ordinary debt for -sale or discount must be considered an advantage to the creditor. It is not essential to the Validity of a promise that the advantage to the party for whose benefit the promise is made should be equal to the benefit or injury to. be sustained by the other. ■ It is sufficient that an advantage or benefit is to be derived by the party who is .the recipient of such promise. Kegardless of these considerations, if the case of Place v. McIlvain, supra, is to be followed, the acceptance and retention of the notes given by Harwood & Irish to the plaintiffs would operate as an extension of credit of the debt that would be effectual to discharge the surety. Certainly, under the case last cited, the drawing of the draft at three, days’ sight by the plaintiffs, and the acceptance thereof by Harwood & Irish, had the ' effect to bar the right of action upon the original debt until de-. fault in the payment of the draft.

The complaint in this case should be dismissed..

Complaint dismissed.  