Mayer v. Cook , 57 N.Y.S. 94 ( 1899 )

Leventritt, J.

The judgment recovered by the plaintiff was predicated on the following guaranty.

•“ Beooklyx, Jany. 19th, 1897.

“ To Chas. H. Maybe, 348 Greenwich St., New Yorlc:

“ Snt.— For and in consideration of the sum of $1.00 to me paid by you, receipt whereof is acknowledged, I hereby agree to-become surety for the payment of all bills of goods bought by Mr. James J. Burton and Mr. James J. Mackin, both of the city of Brooklyn, to an extent not exceeding the sum of three hundred and fifty dollars and for any default that shall be made in the payment of the said sum of $350.00 or any part thereof, I hereby undertake and agree to pay to you the said sum or such sum as may be due, and

“ It is hereby expressly agreed and declared that the said sum of three hundred and fifty dollars or any smaller portion thereof, shall be considered as liquidated damages and treated as such for the purpose of this undertaking and agreement.

“Dated this 19th day of January, 1897.

“ Geobge Cook.

“ Witness:

“ J. W. Webber.”

The plaintiff seeks to hold the defendant answerable for the unpaid balance of the price of certain goods sold and delivered to James J. Burton individually. No goods were sold to James J. Mackin individually or to James J. Burton and James J. Mackin jointly.

It cannot be questioned that the guaranty contemplated joint sales only. The language admits of no other construction. The use of the conjunctive “ and ” and the phrase “ all bills of goods bought by Mr. James J. Burton and Mr. James J. Mackin ” cannot be construed to cover bills of goods bought by either of them' individually.

While^courts have construed “ and ” as “ or ” and vice versa, such construction has been sanctioned only for strong reason and' in order to carry out the manifest intention of the parties. 11 Am. & Eng. Ency. of Law, 338; Roome v. Phillips, 24 N. Y. 463; Hale v. Sweet, 40 id. 97.

The paper before us in so far as it reflects any intention indicates that only joint sales were contemplated; that the liability of the defendant was to arise only on the default of two persons and not on that of either. This appears from the phraseology adopted with reference to the limitations of the amount of the guaranty as one gross sum covering sales to both and not to each. The extent of 'the guarantor’s liability would be doubted if the respondent’s construction were to prevail. It is unnecessary to invoke the rule of strict construction to protect the guarantor against the liability here sought to be enforced.

The obvious intention disclosed by the instrument is supported by the evidence. That indicates that at the time of the execution of the guaranty a copartnership between Burton and Mackin was contemplated and mentioned.

It is manifest that an engagement to answer for the obligations of debtors collectively cannot be extended to their individual obligations. New Haven County Bank v. Mitchell, 15 Conn. 207; Bill v. Barker, 16 Gray, 62; Barns v. Barrow, 61 N. Y. 39. The judgment must, therefore, he reversed.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.