Opinion
July, 1904.
Perkins Jackson, for plaintiff.
Edward S. Griffing, for defendant.
"A guarantor, like a surety, is bound only by the strict letter or precise terms of his contract and that the claim against him is strictissimi juris." Creamer v. Mitchell, 162 N.Y. 477-486.
The contract in this case was for 100,000 castings to be delivered from time to time, at the average rate of 2,000 per day, to be paid for upon delivery. The guarantee was, "I guarantee payment on castings ordered by * * * as per their contract with you." This is not a guarantee that the contract will be fulfilled in all its terms. It is not a guarantee against any breach of the contract. It is simply a guarantee of payment in accordance with the terms of the contract, that is, that payment will be made for the castings delivered, upon their delivery. He only became responsible for the castings delivered and received by the vendee, or which were tendered and should have been received by the vendee, and not for any damages suffered by the vendor in consequence of the vendee's terminating the contract.
The plaintiff's claim to recover the difference between the contract price and the cost price of manufacturing the castings is a claim for damages for a breach of the contract, and is not a claim for payment for castings delivered.
I can see no distinction between this case and that of De Luka v. Goodwin, 142 N.Y. 194, and Beagle v. Cable, 55 A.D. 155.
I must, therefore, hold that the plaintiff cannot recover upon the guarantee the difference between the contract price of the manufactured and untendered castings and what it would have cost to have manufactured them.
As to the contention, that there was a departure from the terms of payment provided for in the contract after the guarantee of payment by the defendant, by the arrangement between the vendor and vendee, by which when the castings were shipped, the vendor should send the bill therefor to the vendee, who should check off the castings and then send his check therefor, I do not think it can be sustained.
When payment for articles is to be made upon delivery, the delivery is not complete until the consignee has had an opportunity to ascertain what is tendered to him, and whether it corresponds with what he is asked to pay for. "When a vendor sells goods of a specified quality, but not in existence or ascertained, and undertakes to ship them to a distant buyer when made or ascertained, and deliver them to the carrier for the purchaser, the latter is not bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier does not necessarily bind the vendee to accept them. On their arrival he has the right to inspect them to ascertain whether they conform to the contract." Pope v. Allis, 115 U.S. 363; Croninger v. Crocker, 62 N.Y. 151; Pierson v. Crooks, 115 id. 539; Benj. Sales, § 695.
It follows from this that a delivery is not complete until there has been a reasonable time for examination or inspection. This applies not only as to the quality of the goods, but also as to numbers when the delivery consists of a number of articles.
In this case the contract calls for the shipment from time to time of a number of the articles contracted for, and for payment for the number so delivered from time to time; the vendee had the right of inspection, or examination, to ascertain whether the number purporting to have been shipped and delivered was in fact delivered, and until a reasonable opportunity was afforded him for that purpose the delivery would not be complete.
In this case checking off meant ascertaining the number of castings, and until that number was ascertained it is apparent that the vendee would not know whether the amount set forth in the bill sent to him was correct or not.
No contention was made that payment by check was not a compliance with the requirements of the contract. The plaintiff, therefore, is entitled to recover of the defendant the contract price of the castings manufactured and shipped to the vendee's place of business, as set forth in the decision filed herewith.
Judgment for plaintiff.