Everson v. . Gere , 122 N.Y. 290 ( 1890 )

This action was brought to recover the amount due upon a promissory note guaranteed by the defendant.

It appeared that on the 12th day of February, 1884, the Syracuse Iron Works executed its promissory note for $36,000, payable to the order of Charles E. Hubbell, treasurer, twelve months after date, with interest at six per cent per annum, payable semi-annually; that the note was indorsed by Charles E. Hubbell, treasurer, "pay John Crouse Co. or order," and delivered to them, and attached thereto was the following guaranty signed by the defendants: "For value received of John Crouse Co., we do hereby guarantee to said John Crouse Co. the payment of the note hereto annexed, made by the Syracuse Iron Works, for $36,000. Said note being dated February 12, 1884, payable twelve months after date at the Merchants' National Bank of Syracuse, with interest at six per cent per annum, payable semi-annually." Subsequently, and before the maturity of the note, John Crouse Co. indorsed the same to the plaintiff "without recourse," and at the same time executed and delivered an assignment thereof, together with the written guaranty attached thereto. The trial court granted a nonsuit upon the following grounds: That the guaranty sued upon is special, personal to John Crouse Co., and did not accrue to the benefit of the plaintiff. That no cause of action had accrued upon the guaranty at the time of its assignment, and that no cause of action thereon was or could be assigned to the plaintiff. That John Crouse Co. having undertaken to assign the guaranty before the maturity of the note, the plaintiff acquired no right thereunder and cannot maintain the action.

The later propositions are involved in the former, so that but one question requires discussion, and that is whether the guaranty sued upon is special and personal to John Crouse Co., or is to be regarded as a general guaranty for the payment of the note. It will be observed that the guaranty was executed and attached to the note at the same time that it was indorsed and delivered to John Crouse Co. By the general rules of construction, papers thus executed and delivered are to be considered together as one instrument, and the intention of the parties determined therefrom. (McLaren v. Watson, 26 Wend. 425; Church v. Brown, 21 N.Y. 315-319.)

The note upon which the guaranty was attached was negotiable, and was indorsed payable to the order of John Crouse Co. By the guaranty the defendant undertook to pay John Crouse Co. in case the maker did not pay the note at its maturity. It was transferable from person to person by indorsement. No trust or confidence was imposed in John Crouse Co., and it consequently appears to us that it was the intention of the parties to undertake to pay the note to them, or to the person or persons to whom they should transfer it. (Stillman v. Northrup, 109 N.Y. 473-481; Craig v.Parkis, 40 id. 181; Claflin v. Ostrom, 54 id. 581; U.Bank v. Executors, 3 id. 203.)

A special guaranty is limited to the person to whom it is addressed, and usually contemplates a trust or reposes a confidence in such person. Such a guaranty may not be assignable until a right of action has arisen thereon. (E.N. Bank v.Kaufmann, 93 N.Y. 273.)

In that case the defendants had written Bingham Brothers to the effect that any draft that they may draw on A. Feigel-stock of their city they guaranteed to be paid at maturity Here was trust and confidence reposed. The draft or drafts were to be drawn in the future, and as contemplated by the parties in the natural course of their business transactions. But in the case at bar the guaranty was attached to a promissory note previously executed and delivered. Its amount and time of payment was fixed. The defendants undertook to pay if the maker did not, and it could make no difference to them whether they paid to John Crouse Co. or to some other person to whom they had transferred their claim.

We consequently are of the opinion that the order of the General Term should be affirmed and judgment absolute ordered for the plaintiff upon the stipulation.

All concur except FOLLETT, Ch. J., not sitting.

Order affirmed and judgment accordingly.