Opinion
June, 1912.
Henry Kuntz (Abraham P. Wilkes, of counsel), for appellant.
Abraham A. Silberberg, for respondent.
The defendant on October 27, 1909, signed the following written guaranty:
"NEW YORK, October 27, 1909.
"In consideration of One (1) Dollar to me in hand paid, receipt of which is hereby acknowledged, 1 the undersigned, hereby guarantee to Wm. Isaacs of 373 Broadway, for merchandise purchased by N. Johnson from said Wm. Isaacs, and in the event of said N. Johnson not meeting his bills at maturity, I shall hold myself personally liable for the payment of same. It shall, however, be stipulated that my liability for above guarantee shall not exceed the sum of Four hundred (400) Dollars.
"ALFRED MOLL."
The plaintiff claims under that guaranty for goods sold and delivered to Johnson between June 19, 1911, and September 25, 1911. The sole question litigated was, whether the guaranty was of a continuing nature, including all of goods sold thereafter, or whether it was limited to goods which had been purchased prior to October 27, 1909. There can be no question but that, according to the rules of strict grammatical construction, the guaranty is for "merchandise purchased," and is limited to goods purchased prior to that date. While the guaranty contains words of futurity, they are entirely consistent with the strict construction of the words "merchandise purchased," for these words are used apparently with reference only to the payment of the bills for this merchandise on maturity. The plaintiff, however, claims that the strict grammatical construction must give way to the intent of the parties as shown by their acts. Conceding, without deciding, that parol evidence was properly admitted to explain the meaning of the words used, I fail to find that this evidence is sufficient to sustain the construction for which the plaintiff contends.
The plaintiff's salesman testified that, prior to obtaining the guaranty, he obtained an order from Johnson, and then went to see the defendant, and obtained the written guaranty from the defendant. The complaint itself alleges that the guaranty was obtained in consideration of and to obtain the delivery at that time of goods, for the sale of which, upon terms of credit, the said Johnson had applied to the plaintiff. In view of these allegations and conceded facts, the strict grammatical construction of the words of the guaranty is absolutely in accordance with the actual intent of the parties. If the guaranty was obtained, as the complaint alleges, "to induce the delivery at said time, of goods, wares and merchandise to said Nathan Johnson, upon terms of credit," it should not be so construed as to cover goods sold and delivered almost two years thereafter. The sole evidence which the plaintiff produced to show a contrary intent was conversations with the defendant in the fall of 1910, in which the plaintiff complained that Johnson was slow in meeting his bills, and that defendant said he would speak to Johnson. There is no evidence that the defendant then understood, either that the bills were for goods bought after the guaranty was given, or that the defendant understood that plaintiff was claiming any liability on his part for such bills. Nor does the fact that defendant pleaded, in addition to a denial of the allegations of the complaint, affirmative defenses of accord and satisfaction and of cancellation, show any admission of liability on his part. He had a right to plead inconsistent defenses, and may, in spite of his defenses, rely upon the denial of the allegations of the complaint.
The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.
SEABURY and BIJUR, JJ., concur.
Judgment reversed.