Hurd v. Newbrook , 51 N.Y. St. Rep. 55 ( 1893 )

Hatch, J. (concurring).

I concur in the result reached by Titus, Ch. J., upon the ground that the guaranty, in this case, is to be construed as referring to the building contract to determine the time when payments fell due and for no other purpose. And, as it appears, the contract was finished to the extent of entitling Walty to two payments, it then became the right of plaintiffs, under the guaranty, to demand pay thereon, and that upon the proof here, without reference to the subsequent acts of Walty; for, if all the damage occasioned by Walty’s breach of contract be deducted, there still remained and was paid to him a sum sufficient and more than sufficient to discharge plaintiff’s debt. Under this construction, it is clear that a time came when Walty was entitled to demand a sum of money due upon the contract, exceeding the amount of plaintiffs’ bill. When that moment arrived, defendant’s guaranty attached and his contract then was to see plaintiffs paid. There is no hardship in this, for defendant then had it in his power to protect both himself and plaintiffs. He chose to permit payment to be made to Walty without seeing that it was properly applied and thereby assumed the risk of Walty’s default. This construction was overlooked by the court below, and in consequence the judgment must be reversed with costs.

Judgment reversed.