By the Court, Hand, J.
If the letter addressed to the plaintiffs by the defendants, and upon which the former rely to sustain the first four' counts of the declaration, was intended as a guaranty, (and one count is upon it as such,) it was not a continuing guaranty. A claim against a guarantor is strictissimi juris; and the intention should be clear and manifest. (Dobbin v. Bradley, 17 Wend. 425. Mauran v. Bullers, 16 Peters, 537. Russell v. Clarks Ex'rs, 7 Crunch, 69. 3 Kent, 124.) In this case the plaintiffs furnished ten different bills of goods, at different times. In several eases in England, some effect seems to have been given to the word “ any,” in the letter of credit. (Hitchcock v. Humphrey, 5 M. & G. 559. Mason v. Pritchard, 12 East, 227. Barton v. Bennett, 5 Camp. 220. Merle v. Wells, 2 Id. 413. Mayer v. Isaac, 6 M. & W. 605.) But in Rogers v. Warner, (8 John. 119,) the language was, if A. & B. “ wish to take goods of you on credit, we are willing to lend our names as security for any amount they may wishand it was held not to be a continuing guaranty. (And see Whitney v. Groot, 24 Wend. 82; Fellows v. Prentiss, 3 Denio, 512; Bovill v. Turner, 2 Chit. Rep. 205; Melville v. Hayden, .3 B. & Ald. 593.) If the plain terms of the contract may be fulfilled by being confined to one transaction, courts are not anxious to extend it to others. There should be words showing the contemplation of a continuous supply. In this case there is nothing in the letter implying that more than one purchase was contemplated, or that there was to be a continuing credit. The words “ whatever goods you sell to A. B.” leave the amount unlimited, but do not necessarily, or impliedly, refer to more than one time.
[159]*159If this be the true construction, the plaintiffs, if they can recover upon it as a guaranty merely, can recover only the amount of the first purchase. A paper of another date, was spoken of by one of the witnesses, but its contents were not stated; nor is it declared upon in this cause. But is this a guaranty ? Admitting that there is sufficient consideration, the agreement, as I understand it, is, that Buck may bring the goods which the plaintiffs may sell to him, into the store of the defendants, of which it appears he had charge; there to be sold out, and as fast as they were sold, Buck was to be allowed to take money, the avails of the business of the defendants there, and pay therefor. If the goods had been purchased under the letter, and brought to the store of the defendants and sold, the latter would have been under obligations to allow Buck to take money to pay for them; even though they had not received from Buck the money, which he had received for the goods. But having done that, they were not liable for the due application of the money by him, to that purpose. If they allowed him to take sufficient money to pay for the goods sold, they were no further responsible. Further than that there would have been no privity of contract between the plaintiffs and the defendants. (Birckhead v. Brown, 2 Denio, 375.) So much they contracted to do; and perhaps on a refusal, they might have been liable for money had and received to the use of the plaintiffs, if they had received the avails of the goods. But this letter does not seem to have been used, or acted on by the plaintiffs. There is no proof that they sold to Buck, but on the contrary, the goods were charged to the defendants, the bills made out in their names, and the goods so marked and forwarded; and it appears that on the trial in Vermont, Buck swore that he had authority to purchase the goods in their names. That was not a sale in pursuance of the terms of the letter. That was necessary to bind the defendants by that instrument. (Dobbin v. Bradley, supra.) If the sale was directly to the defendants; or the transactions between the parties were such that the defendants could be treated as original debtors, clearly the judgment of the .county court in Vermont was a bar.
[160]*160The remaining question to he considered, is, the effect of that judgment. That suit was for goods sold and delivered; and the cause was referred, and tried by referees, who found for the defendants. It does not appear by the record, that the defendants pleaded, but they appeared and defended by attorney. The attorneys for both parties there were examined on the trial of this cause; by which it would seem the cause was tried upon the merits. The declaration in this cause contains counts upon the special contract or writing dated August 19th, 1844; also for goods sold and delivered; and for money and labor; and an account stated. As I understand the evidence, one of the attorneys for the defendants in the suits in Vermont testified that the causes of action now specially declared upon, and all growing out of the same subject matter, could have been proved in that suit; and that upon the question arising upon that trial, it was so conceded by counsel on both sides, and so determined by the referee; and the attorney for the plaintiffs, there, produced the letter dated August 19th, 1844, before-the referees, on the call of the defendants. It is well settled, as a general rule, that a judgment of a court, possessing competent jurisdiction, is final between the parties. When a record is evidence, and under what pleadings it may be proved, has often been a mooted question. Notice of this defense was given in this suit; so the last point does not arise.
It has been decided that where, by the pleadings, a claim or defense was inadmissible, even though litigated, the judgment was no bar to such claim or defense, if disallowed. (Wolfe v. Washburn, 6 Cowen, 261. Beebe v. Bull, 12 Wend. 504. Bull v. Hopkins, 7 John. 22. McGuinty v. Herrick, 5 Wend. 245. Campbell v. Butts, 3 Comst. 173. Quackenbush v. Ehle, 5 Barb. 469. Miller v. Manice, 6 Hill, 121.) And so, if the claim was withdrawn; or a part of it did not then exist, or had not accrued. (Seddon v. Tutoss, 6 T. R. 608. Halsey v. Reed, 9 Paige, 446. Wright v. Butler, 6 Wend. 284 Doty v Brown, 4 Comst. 71.) Or was inadmissible under the pleadings, though proved to show malice. (Campbell v. Butts, supra.) But where it could have been allowed, if the proof had [161]*161been sufficient, and has been - passed upon on the merits, it is barred, whether allowed or not. (McGuinty v. Herrick, supra. Morgan v. Plumb, 9 Wend. 287. Wilder v. Case, 16 Id. 583. Lawrence v. Hunt, 10 Id. 80. Ehle v. Bingham, 7 Barb. 494. McLean v. Hugarin, 13 John. 184. Eastmure v. Laws, 5 Bing. N. C. 444. Dunn v. Murray, 9 B. & C. 780.) And it seems that if the matter might have been litigated and decided in the first cause, as a general rule, the judgment will be final. (Bouchaud v. Dias, 3 Denio, 238. Embury v. Conner, 3 Comst.
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By the Court, Hand, J.
If the letter addressed to the plaintiffs by the defendants, and upon which the former rely to sustain the first four' counts of the declaration, was intended as a guaranty, (and one count is upon it as such,) it was not a continuing guaranty. A claim against a guarantor is strictissimi juris; and the intention should be clear and manifest. (Dobbin v. Bradley, 17 Wend. 425. Mauran v. Bullers, 16 Peters, 537. Russell v. Clarks Ex'rs, 7 Crunch, 69. 3 Kent, 124.) In this case the plaintiffs furnished ten different bills of goods, at different times. In several eases in England, some effect seems to have been given to the word “ any,” in the letter of credit. (Hitchcock v. Humphrey, 5 M. & G. 559. Mason v. Pritchard, 12 East, 227. Barton v. Bennett, 5 Camp. 220. Merle v. Wells, 2 Id. 413. Mayer v. Isaac, 6 M. & W. 605.) But in Rogers v. Warner, (8 John. 119,) the language was, if A. & B. “ wish to take goods of you on credit, we are willing to lend our names as security for any amount they may wishand it was held not to be a continuing guaranty. (And see Whitney v. Groot, 24 Wend. 82; Fellows v. Prentiss, 3 Denio, 512; Bovill v. Turner, 2 Chit. Rep. 205; Melville v. Hayden, .3 B. & Ald. 593.) If the plain terms of the contract may be fulfilled by being confined to one transaction, courts are not anxious to extend it to others. There should be words showing the contemplation of a continuous supply. In this case there is nothing in the letter implying that more than one purchase was contemplated, or that there was to be a continuing credit. The words “ whatever goods you sell to A. B.” leave the amount unlimited, but do not necessarily, or impliedly, refer to more than one time.
[159]*159If this be the true construction, the plaintiffs, if they can recover upon it as a guaranty merely, can recover only the amount of the first purchase. A paper of another date, was spoken of by one of the witnesses, but its contents were not stated; nor is it declared upon in this cause. But is this a guaranty ? Admitting that there is sufficient consideration, the agreement, as I understand it, is, that Buck may bring the goods which the plaintiffs may sell to him, into the store of the defendants, of which it appears he had charge; there to be sold out, and as fast as they were sold, Buck was to be allowed to take money, the avails of the business of the defendants there, and pay therefor. If the goods had been purchased under the letter, and brought to the store of the defendants and sold, the latter would have been under obligations to allow Buck to take money to pay for them; even though they had not received from Buck the money, which he had received for the goods. But having done that, they were not liable for the due application of the money by him, to that purpose. If they allowed him to take sufficient money to pay for the goods sold, they were no further responsible. Further than that there would have been no privity of contract between the plaintiffs and the defendants. (Birckhead v. Brown, 2 Denio, 375.) So much they contracted to do; and perhaps on a refusal, they might have been liable for money had and received to the use of the plaintiffs, if they had received the avails of the goods. But this letter does not seem to have been used, or acted on by the plaintiffs. There is no proof that they sold to Buck, but on the contrary, the goods were charged to the defendants, the bills made out in their names, and the goods so marked and forwarded; and it appears that on the trial in Vermont, Buck swore that he had authority to purchase the goods in their names. That was not a sale in pursuance of the terms of the letter. That was necessary to bind the defendants by that instrument. (Dobbin v. Bradley, supra.) If the sale was directly to the defendants; or the transactions between the parties were such that the defendants could be treated as original debtors, clearly the judgment of the .county court in Vermont was a bar.
[160]*160The remaining question to he considered, is, the effect of that judgment. That suit was for goods sold and delivered; and the cause was referred, and tried by referees, who found for the defendants. It does not appear by the record, that the defendants pleaded, but they appeared and defended by attorney. The attorneys for both parties there were examined on the trial of this cause; by which it would seem the cause was tried upon the merits. The declaration in this cause contains counts upon the special contract or writing dated August 19th, 1844; also for goods sold and delivered; and for money and labor; and an account stated. As I understand the evidence, one of the attorneys for the defendants in the suits in Vermont testified that the causes of action now specially declared upon, and all growing out of the same subject matter, could have been proved in that suit; and that upon the question arising upon that trial, it was so conceded by counsel on both sides, and so determined by the referee; and the attorney for the plaintiffs, there, produced the letter dated August 19th, 1844, before-the referees, on the call of the defendants. It is well settled, as a general rule, that a judgment of a court, possessing competent jurisdiction, is final between the parties. When a record is evidence, and under what pleadings it may be proved, has often been a mooted question. Notice of this defense was given in this suit; so the last point does not arise.
It has been decided that where, by the pleadings, a claim or defense was inadmissible, even though litigated, the judgment was no bar to such claim or defense, if disallowed. (Wolfe v. Washburn, 6 Cowen, 261. Beebe v. Bull, 12 Wend. 504. Bull v. Hopkins, 7 John. 22. McGuinty v. Herrick, 5 Wend. 245. Campbell v. Butts, 3 Comst. 173. Quackenbush v. Ehle, 5 Barb. 469. Miller v. Manice, 6 Hill, 121.) And so, if the claim was withdrawn; or a part of it did not then exist, or had not accrued. (Seddon v. Tutoss, 6 T. R. 608. Halsey v. Reed, 9 Paige, 446. Wright v. Butler, 6 Wend. 284 Doty v Brown, 4 Comst. 71.) Or was inadmissible under the pleadings, though proved to show malice. (Campbell v. Butts, supra.) But where it could have been allowed, if the proof had [161]*161been sufficient, and has been - passed upon on the merits, it is barred, whether allowed or not. (McGuinty v. Herrick, supra. Morgan v. Plumb, 9 Wend. 287. Wilder v. Case, 16 Id. 583. Lawrence v. Hunt, 10 Id. 80. Ehle v. Bingham, 7 Barb. 494. McLean v. Hugarin, 13 John. 184. Eastmure v. Laws, 5 Bing. N. C. 444. Dunn v. Murray, 9 B. & C. 780.) And it seems that if the matter might have been litigated and decided in the first cause, as a general rule, the judgment will be final. (Bouchaud v. Dias, 3 Denio, 238. Embury v. Conner, 3 Comst. 522, Jewett, J. Morgan v. Plumb, supra. Stafford v. Clark, supra. Vail v. Vail, 7 Barb. 226. Gardner v. Buckbee, 3 Cowen, 120. Etheridge v. Osborn, 12 Wend. 399. LeGuen v. Gouverneur, 1 John. Cas. 492. Burt v. Sternburgh, 4 Cowen, 559.) Particularly, if the subject matter actually determined or passed upon was a part of the same transaction. (Id) And if it does not appear from the record, that the verdict or judgment was directly upon the point, or matters, which are again attempted to be litigated, that may be shown by proof aliunde; provided the pleadings would have justified the evidence of those matters, and the verdict and judgment would necessarily have involved their consideration, had they been proved. (Nelson, J. in Lawrence v. Hunt, supra. Wood v. Jackson, 8 Wend. 9. Young v. Black, 7 Cranch, 515. Ehle v. Bingham, supra. Dunckle v. Wiles, 6 Barb. 515. 2 Cowen & Hill’s Notes, 848.) A valid record cannot be contradicted; nor can additions be made thereto. As to foreign judgments, the rule, particularly in relation ,to contradiction, perhaps, is not settled in England. (2 Smith’s Lead. Cas. 448, et seq. 1 Greenl. Ev. § 546, et seq.) However, a judgment of a court of one of our sister states, having jurisdiction, is conclusive if there is no fraud. (Noyes v. Butler, 6 Barb. 617, and cases there cited. 1 Greenl. Ev. § 547. Manny v. Harris, 2 John. 24. 2 Cowen & Hill’s Notes, 839.) But it may be explained. (Id.) There was no objection to the testimony in relation to the law and practice of the courts in Vermont in admitting proof under such a declaration.. Had there been, I am inclined to think it would have been admissible. One [162]*162learned in the law, in this state, would be competent to prove what could be shown under the common counts, or general issue; or a notice therewith; under our former system. And an English counsellor at law might testify in respect to their new system. (2 Cowen & Hill’s Notes. 1142.) From the testimony in this cause, it would seem that the plaintiffs could in the first suit have insisted upon their right to recover upon every ground on which they now rely. If so, it is hardly right that the plaintiffs should there withhold the evidence, if they did so, and then sue again to recover upon the same transaction, and for the same debt or claim. A distinct subject matter was not withdrawn or withheld; for the object in both suits .was to compel the defendants to pay for the same goods. As a general rule, if the cause goes off on a technical defect, and not on the merits, the judgment in the first suit is not a bar. (1 Greenl. Ev. § 530.) But a party will not be permitted to sue again, because he reserved, or for some cause did not produce a part of his evidence on the first trial. And, of course, if the same proof now offered was properly introduced, and considered upon the merits, that is the end of the matter.. And it is hardly necessary to add, that that judgment is a bar to the count in this suit for goods sold, if the trial was on the merits.
[Warren General Term,
May 3, 1852.
Willard, Hand, Cady, and C. L. Allen, Justices.]
On the point of practice, I think the judge was right in per mitting the verdict to be entered upon the special counts; if by his notes, it appeared that all the evidence was applicable to the special counts. (Sayre v. Jewett, 12 Wend. 135. 1 Burr. Pr. 243. Chit. Pr. 922. And see 2 Saund. 171 n. 1, a, b, c, d; Norris v. Durham, 9 Cowen, 151; Empson v. Griffin, 11 A. & E. 186; Grant v. Astle, Doug. 729 ; Eddowes v. Hopkins, Id. 377; Reg. v. Virrier, 12 A. & E. 317; Lewin v. Edwards, 9 M. & W. 720, and Am. note.) If 'the count for goods sold, had been barred and the others not, for the purpose of amending the verdict, I do not see why it could not be treated the same as if it had been a bad count.
There should be a new trial, costs to abide the'event.