Opinion
December 5, 1913.
Ralph Wolf [ Edwin D. Hays with him on the brief], for the appellant.
Otto C. Sommerich [ Maxwell C. Katz with him on the brief], for the respondents.
The recovery in the City Court was upon a written guaranty in the form of a letter from the defendants to the plaintiff under date of March 4, 1907, the body of which is as follows: "We agree to guarantee the account of N. Mittelman Co. of 725 Broadway, N.Y. City, for the sum of $1000.00 for one year from date." The answer put in issue the allegations of the complaint with respect to the execution of the guaranty and the sale and delivery of goods in reliance thereon, and for a separate defense alleged that the guaranty was not in writing.
The plaintiff showed that the firm of N. Mittelman Co. applied to it to purchase goods on credit and that it requested a guaranty and the firm agreed to give a guaranty executed by defendants; that thereafter the guaranty was received by plaintiff through the mail and examined and initialed by its credit man and indorsed "Received Mar. 5, 1907 Mailing Dept." and filed away; that the plaintiff decided to extend credit on the strength of the guaranty and relying thereon sold and delivered goods to said firm of N. Mittelman Co. for which payment had not been made of the amount and value for which a recovery was had, the orders for which goods were given during the year covered by the guaranty, although some of the deliveries were not made until shortly after that period.
The defendant showed, on cross-examination of plaintiff's credit man, that on receipt of the guaranty on which the action is based he, being desirous of having the defendants execute a more formal guaranty, sent them one by mail for execution, saying, in a letter written in the name of the firm accompanying it, "We are enclosing a form of guaranty which kindly sign and witness by a notary, and return to us." The defendants received the letter and inclosure, but neither executed the formal guaranty nor communicated with the plaintiff concerning the same nor concerning the former guaranty. The plaintiff without further action extended the credit. The formal guaranty which the plaintiff thus requested the defendants to execute was for the same amount and the same period; but in addition it recited a consideration of one dollar and contained a waiver of notice of the condition of the account of N. Mittelman Co. and a waiver of notice of non-payment and of a demand. The defendants are brothers and one of the firm of N. Mittelman Co. was their brother and the other member of that firm was their brother-in-law.
The theory on which the learned Appellate Term reversed the judgment and, in effect, dismissed the complaint is, that defendants' letter was merely an offer of a guaranty and was not accepted. We are of opinion that the letter was something more than an offer of a guaranty, and that it was accepted by the sale and delivery of goods in reliance thereon, and that thereupon it became a binding obligation without notice to defendants of its acceptance. ( Winne v. Mehrbach, 130 App. Div. 329; Corn v. Bergmann, 138 id. 260; Disken v. Herter, 73 id. 453.) The request for the execution of a formal guaranty containing additional provisions did not, in and of itself, constitute a rejection of the guaranty which the plaintiff had received and retained and decided to accept by extending the credit. Doubtless there would be no liability if, as in the case of Kamber v. Rosen (98 N.Y. Supp. 839), the plaintiff had returned the letter or had notified defendants that it would not extend the credit unless the more formal guaranty was executed.
Although the trial was before the court and jury, at the close of the evidence the facts were determined by the court and a verdict directed for the plaintiff without objection or exception. The defendants destroyed the formal guaranty which plaintiff requested them to execute. The court did not receive in evidence an alleged copy thereof, but permitted it to be marked for identification, and it is in the record. The failure of the court to receive it in evidence affords no basis for interfering with the judgment, since there is nothing in the exhibit so marked for identification which, if it had been received in evidence, would require a different decision.
It follows that the determination of the Appellate Term should be reversed, with costs, and the judgment of the City Court affirmed, with costs.
INGRAHAM, P.J., McLAUGHLIN, DOWLING and HOTCHKISS, JJ., concurred.
Determination reversed, with costs, and judgment of City Court affirmed, with costs. Order to be settled on notice.