¶1I concur in the result reached by TITUS, C. 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 that 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 plaintiffs’, 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 *1032Walty, 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.
21 N.Y.S. 1029
Hurd v. Newbrook
The Superior Court of the City of New York and Buffalo
Decided February 3, 1893
The Superior Court of the City of New York and Buffalo · decided 1893-02-03
<p>1. Guaranty—Consideration. Where defendant guarantied the payment of a lumber bill made out and presented by plaintiffs to him for approval before delivery of the lumber to a contractor, who used the same in the erection of a house for the guarantor’s son, the delivery of the lumber was sufficient consideration for the guaranty.</p> <p>2. Same—Conditions. The guaranty stated: “I approve of the above bill, amountingto $460, and agree to see it paid, according to the terms of payment agreed to in the building contract. ” The building contract provided l’or payment in three installments, the last one when the building was completed. Held, that defendant was liable on the guaranty, though the contractor absconded after the payment of the second installment, and nothing was due him on the completion of the building by the owner, since the contract only fixed the time of payment of the guaranty.</p>
Decided 1893-02-03