In Beakes v. Da Cunha, 126 N.Y. 293, the same exception was referred to, and the court there said, speaking of the facts in that case: "There was evidence sufficient, although quite slight, to show that the defendant's testator, at the time he executed the guaranty, knew that plaintiffs were copartners doing business under the firm name of George E. Beakes, and that he intended that the guaranty should be for their benefit."Summary of this case from Meyer v. Kahnweiler
Argued March 20, 1891
Decided April 14, 1891
E.P. Benn for appellant.
Richard L. Sweezy for respondent.
The written guaranty, upon its face, appears to be for the benefit of George E. Beakes individually, and not for the benefit of any firm, and hence the defendant claims that the plaintiffs, as copartners, cannot have the benefit of the guaranty, and his counsel relies upon the case of Barnes v. Barrow ( 61 N.Y. 39). But this case is clearly distinguishable from that. There was evidence sufficient, although quite slight, to show that the defendant's testator, at the time he executed the guaranty, knew that the plaintiffs were copartners doing business under the firm name of George E. Beakes, and that he intended that the guaranty should be for their benefit. He knew that the milk which Ketcham had been receiving came from Sidney Centre, Delaware county, and that that which he intended to receive after the execution of the guaranty was to come from the same place, and the guaranty was intended to cover that milk by whomsoever shipped. The business was carried on in the name of George E. Beakes, and the guaranty was intended for that business and to secure the payment of the milk shipped in that business to Ketcham. We cannot disturb the finding of fact upon this point in favor of the plaintiffs, and must, therefore, hold that the guaranty is available to them.
It is further claimed on the part of the defendant that the notice required by the written guaranty to be given on the twentieth of each month was not in fact given. Where any statute or the terms of any contract require notice to be given, and there is nothing in the context of the statute or the contract, or in the circumstances of the case, to show that any other notice was intended, a personal notice must always be given. But the context or the circumstances of the case may be such as to show that a personal notice was not intended, and in such a case a notice by mail, which is the ordinary mode of giving notices in business transactions, is authorized. Here Gedney lived in the city of New York, and this business was transacted in Delaware county where the manager of the business resided, and it cannot be supposed that the parties had in contemplation a personal notice, to be served in the city of New York on the twentieth of each month, of any default in the payment for the previous month's milk. The exigencies of the case were not such as to require such a notice, and it cannot be supposed that the parties intended it. A notice by mail would accomplish all the purposes which the guarantor had in mind in requiring it, and the acts of the parties show that they understood that was the kind of notice to be given. The evidence tends to show and authorizes the finding that the notices by mail were given, as required by the guaranty, on the twentieth of each month, and that Gedney received them, making no complaint at any time that they were sent to him by mail, or that he did not promptly receive them, or that he was entitled to personal notice. Taking the circumstances of the case into consideration, and the conduct of the parties, it is quite clear that the notice by mail was such as all the parties contemplated and intended at the time the guaranty was executed.
The further claim is made on the part of the defendant that the guaranty is not upheld by any sufficient consideration. Previous to the execution of the guaranty, Ketcham had been receiving plaintiffs' milk through the Milk Exchange — some sort of a corporation or association existing in the city of New York. It is inferable that Ketcham desired to engage in dealings directly with the plaintiffs, and that he procured the guaranty in order that he might have future credit with them. This was a continuing guaranty intended to secure credit to Ketcham, and on the faith thereof the plaintiffs shipped milk to him and gave him credit, and thus, under all the authorities, there is abundant consideration to uphold the guaranty. ( Church v. Brown, 21 N.Y. 315; City National Bank v. Phelps, 86 id. 484; Rector, etc., v. Teed, 120 id. 583.)
Ketcham was called as a witness on the part of the plaintiffs, and he gave evidence of conversations which he had had with the testator, and the defendant objected that he was not a competent witness to prove such conversations. He was not a party to this action, nor was he interested in any way therein. There is no dispute about his liability to the plaintiffs, and if the defendant should be compelled to pay this judgment, his liability would then be transferred from the plaintiffs to the defendant, and would be no less than it was before. He could not, therefore, be excluded as a witness under section 829 of the Code.
During the progress of the trial various exceptions were taken, on the part of the defendant, to the rulings of the referee upon questions of evidence. We have carefully scrutinized them all and do not think any of them point out material error. We will notice but one. While George E. Beakes was testifying as a witness on the part of the plaintiffs, for the purpose of showing that he had mailed notices as required by the guaranty to Gedney on the twentieth of each month, he was asked this question: "Will you state whether or not it has been your custom to be at home on the twentieth of every month?" This was objected to on the part of the defendant as immaterial and irrelevant, and the objection was overruled. The precise form of the question is undoubtedly open to criticism, but the meaning of the question is quite apparent. What the plaintiffs were seeking to learn by this inquiry was whether he made it a rule, or made it his business, to be at home on the twentieth of every month for the purpose of transacting the business required to be done at that time, and such an inquiry was certainly unobjectionable.
The very satisfactory opinions delivered by the referee and at General Term, render it unnecessary that more should be written now.
The judgment should be affirmed, with costs.