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161 A.D. 598

Roake v. Di Marco

Appellate Division of the Supreme Court of the State of New York · decided 1914-03-27

Appeal by the defendant, Antonio Di Marco, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 25th day of August, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Relies on Henry McShane Co. v. Padian · Sherman v. Mulloy

Decided 1914-03-27

Per Curiam:

¶1On April 16, 1912, defendant gave this written guaranty:

¶2“I understand from Sullivan Parisano, of No. 6 Third Street, New Bochelle, that you are to supply him with building material to the amount of $270, of which you have received $50. That the balance is to be paid at the rate of $50 per month.

¶3“ I am willing to secure you for the balance, which is $220, should Sullivan Parisano fail to do so, by sending you the sum of $50, my personal check to your order on the 15th days of each and every month, until the sum of $220 is paid.”

¶4Plaintiff supplied materials, delivering on April sixteenth lumber and nails to the amount of $86.55, towards which the principal debtor had already paid $50.

¶5By April twenty-sixth plaintiff had delivered materials up to $269.60, but up to November the total sales aggregated $391.26, against which the debtor’s part payments amounted to $185. Plaintiff testified that he had always kept the balance due him under $220. Judgment was given for the balance of the final account, $206.26, with costs.

¶6This appeal raised the question of the intent and scope of the guaranty. Was the $220 mentioned a limit for a standing credit, or was that sum (plus $50 then paid) the limit upon the entire sales %

¶7The first sentence of the above letter limits its scope. It contains a recital, very precise and definite, of the amount of material to be furnished, namely, $270, on which $50 had been paid, the $220 balance to be payable $50 monthly. The trial proofs did not show any error in this summary of the original agreement. Thus defendant showed just how and for what payments he was “willing to secure ” plaintiff, and confined *600it to a single transaction as definitely as if his guaranty had been indorsed upon a written contract for lumber sales. After furnishing $270 worth of material there are no words looking to further supplies or carrying the dealing beyond the first sales, as in McShane Co. v. Padian (142 N. Y. 207). Sales to that amount reached the limit imposed by defendant and exhausted his guaranty. (Fellows v. Prentiss, 3 Den. 512; Lamport v. Greenberg, 48 Misc. Rep. 513; Sherman v. Mulloy, 174 Mass. 41.)

¶8The judgment and order of the County Court of Westchester county must, therefore, he reversed, with costs of appeal to defendant, and judgment for the plaintiff for thirty-five dollars, with appropriate costs to defendant.

¶9Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

¶10Judgment and order of the County Court of Westchester county reversed, with costs of appeal to defendant, and judgment for plaintiff for thirty-five dollars, with appropriate costs to defendant.

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