Dimock & Fink Co. v. Mitchell

117 N.Y.S. 1029

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 25, 1909
• Status: Published

Opinion

PER CURIAM.

This action is brought against Cornell J. Mitchell, as principal debtor, who is alleged to have purchased certain goods from the plaintiff, and against Warren J. Mitchell, who is alleged to have become liable to. the plaintiff for the value of such goods through having delivered to the plaintiff an undated instrument in which he guaranteed the payment, up to $500, of such goods as might be sold by the plaintiff to Cornell J. Mitchell.

The instrument of guaranty provides that the guarantor “will pay the same on demand”; but the references in the briefs to the matter of demand and the futile attempt of the plaintiff to prove demand seem unnecessary, as the allegation of demand is not denied. The defendant attempted to show, not by way" .of part payment of the amount now demanded, but in denial of the allegation of an existing guaranty good up to $500, two payments, aggregating $139.69, to the plaintiff on account of the principal debtor. The defendant -shows that these payments were made subsequent to the execution of -the -guaranty, but does not show that they were made for goods sold and delivered by the plaintiff -to the principal debtor subsequent to the "execution of .the guaranty, and his attempted reduction of the.nominal.debt-limit of the guaranty thus fails.

There appears on the record no proof of the sale and delivery, or of the value, of the goods referred to in the complaint and set forth in the bill of particulars; and the brief of the appellant, entirely without warrant so far as the return discloses, states that the defendant guar-, antor admits to be due an "amount corresponding to that demanded in the complaint. We are unable to find any record of such binding admission. It appears- from the brief of the appellant that upon the trial judgment was rendered against the principal debtor for ;the amount demanded in the .complaint, and although no stress is laid up•on this feature'in the arg'ument, yet if this were the fact.it might well he maintained that,.under the circumstances, such judgment would he conclusive upon the guarantor defendant as to the sale, delivery, and value of the goods in question. We do not find in the return, however, any record of a judgment rendered herein against the principal debtor, and therefore cannot give the appellant the relief which might be possible if the argument were confirmed by the return.

Judgment affirmed, with costs.