Gilbert Congdon & Co. v. Read

7 R.I. 576

Opinion

Ames, C. J.

There can be no doubt but that covenant, and by the plaintiffs, is the proper action in which they rnay recover by way of damages, the amount, uncertain upon the face of the instrument, due, if anything is due to them by the defendant under this sealed guaranty. To the maintenance of the action it is of no consequence whether the contract be conditional or unconditional, so that it be a covenant, and not a condition merely.

The question in the case is, whether the guaranty is a continuing one, — ’applicable to any sum of two hundred and fifty dollars which may remain due from Robinson to the plaintiffs, or is to be confined to the first sum of that amount due from the former to the latter ? The contract of the defendant was, to pay for all articles of book account for which Robinson is now indebted, and all other articles of book account furnished to him on this day or any future day, provided said articles of book account do not exceed the sum of two hundred and fifty dollars. By the promise and the proviso, as we construe them, the old debt, — agreed to be $179.88, — is expressly included within the limited amount guarantied; leaving but little over seventy dollars to be applied to the articles furnished on the day of the guaranty, — $8.67,—and thereafter to be furnished. The literal meaning of the condition is, provided the articles furnished and to be furnished, — -that is, under the guaranty, — do not exceed the sum of $250. Our conclusion is, that when the plaintiffs trusted Robinson beyond that sum, they trusted him on his own account only, and placed themselves without the limits of the guaranty. As it is agreed that this sum has/been long since paid, there is nothing left for- the guaranty to operate upon; and judgment must be rendered for the defendant for his costs.