Opinion
April Term, 1896.
A.G.N. Vermilya, for the appellant.
James D. Fessenden, for the respondent.
The notice of appeal contains the statement that an appeal is taken from the denial of the motion for a new trial made herein. There does not seem to have been any order entered upon such motion, and there is nothing brought up by the attempted appeal from the ruling upon the trial.
This action was brought to recover upon an alleged guaranty given by the defendant. It was claimed upon the part of the plaintiff that the defendant guaranteed the purchase by one Wright of a compressor at the agreed price of $625. The complaint alleged that the goods were delivered in reliance upon the guaranty, and that Wright had refused to pay; that notice of his failure to pay was given to the defendant prior to the commencement of the action and demand of payment made upon him, but that he had neglected to pay. The defendant denied the incorporation of the plaintiff and the sale and delivery of the goods, and alleged that the plaintiff had failed to notify him of any acceptance of his offer of guaranty, and that, therefore, no contract of guaranty ever took effect between the plaintiff and the defendant.
Upon the trial it appeared that, on Wright's making application to purchase, he offered to obtain a guarantor; that an order was prepared and signed by Mr. Wright, which he took to the defendant, who added the words, "I hereby guarantee the above purchase," and signed the guaranty. The paper was brought back and delivered to one of the officers of the plaintiff, who said he would accept it, if Reynolds' financial standing was all right. Some ten or fifteen days afterwards the compressor was delivered to Wright, and he not having paid therefor this action was brought against the defendant upon his guaranty.
It is claimed that the court erred during the progress of the trial in excluding evidence upon the part of Wright, the purchaser of the compressor, as to what took place between him and the salesman who sold the goods to him, some time after the delivery of the same and the completion of the transaction as far as the sale and delivery were concerned. The evidence clearly showed that the transaction was a sale and delivery; and no conversation that the salesman might have had with Wright afterwards could in any way affect the relations of the parties.
But it is to be further observed that when the question was asked, the court was not at all informed as to the object of the inquiry, and there was nothing which would indicate its purpose. In order that objections may be made available, it is necessary that the court should have some reason to see the relevancy of the testimony.
A further answer to the objection is that it appears that, almost immediately after, the witness was permitted to state the conversation which had apparently been excluded, and this would necessarily cure the error if any had been committed.
It is further urged that the defendant could not be held because no notice was given to him of the acceptance of the guaranty. The guaranty was absolute in form and it required no acceptance. ( City Nat. Bank of Poughkeepsie v. Phelps, 86 N.Y. 484.) It is true that in the case cited the court held that there was sufficient to show a notice, but attention is called to authorities holding that in the case of an absolute guaranty, notice of acceptance is not required (p. 493). The case of The Davis Sewing Machine Company v. Richards ( 115 U.S. 524) is in no way in conflict with this rule. All that that case decides is that where the guaranty is signed by the guarantor prior to negotiations for a guaranty by the party to whom the same is to be given, then notice of acceptance is necessary, because the guarantor is entitled to know of the assent of the party receiving the guaranty to the contract. In the case at bar, however, the guaranty is presumed to have been executed at the request of the plaintiff who wanted security for the goods; the purchaser said he would get the guaranty, and he got it and delivered it to the plaintiff. The guaranty was absolute, as already stated, and no notice of acceptance was required.
The judgment should be affirmed, with costs.
BARRETT, RUMSEY, WILLIAMS and PATTERSON, JJ., concurred.
Judgment affirmed, with costs.