Whitney v. Groot , 24 Wend. 81 ( 1840 )

*By the Court,

Nelson, Ch. J.

1. The instrument is certainly imperfect and obscure ; and it is surprising business men should have parted with their goods upon the strength of it, before explanation. I am inclined, however, to think we are bound to understand the effect of it to be as an indemnity to the plaintiffs for the goods they should deliver to Yan Eps. The intervening terms as to credit to be extended by Sanders & Groot ought to be read as included in a parenthesis ; upon any other view the instrument is unmeaning. It was therefore admissible under the first count, and perhaps under others.

2. The instrument did not contemplate any notice of acceptance, or of the sales to the defendant made in pursuance of it; it was not a proposition to become surety for Van Bps, but an absolute undertaking to pay for the goods if he did not, and obviously contemplated a sale and delivery on presentation. Unless there is something in the nature of the contract or terms of the writing creating or implying the necessity of acceptance or notice as. a condition of liability, neither are deemed requisite. 2 Hall’s R. 197, 12 Mass. R. 156, and such is believed to be the rule of the English courts. The party entering into an absolute engagement for the responsibility of his friend should see to the performance of it; the relation in which the parties afterwards stand to each other presupposes privity and knowledge of the credit obtained.

3. It is, in most of these cases, a nice and difficult question to determine, whether the guaranty is a continuing one or not. The intent of the party to be derived from the words is the only sure guide ; and therefore very little aid is to be derived from the adjudged cases, as they turn upon the peculiar phraseology of the guaranty. Upon general principles a strict interpretation should be applied in favor of a surety. I cannot say the credit was to be extended beyond the first parcel of goods. “ All he [Van Bps] may want of you,” does not necessarily extend beyond this—it may fairly intend all he may want at the time. Ordinarily the instruments that have been held to be continuing guaranties limited the amount of the credit which greatly diminished the Responsibility. In the case of Rogers [ *85 ] v. Warner, 8 Johns. R. 119, the words, I think, were broader than in the writing before us; yet it was held that the defendant was not liable for an indefinite time, but only to an indefinite amount for one time. So here.

The report, therefore, should have been for $109,09, instead of $321, 79 ; and must be modified accordingly.