Smith v. Starr

New York Supreme Court

Smith v. Starr

6 Thomp. & Cook 387, 11 N.Y. Sup. Ct. 123

DecidedMarch 15, 1875

StatusPublished

This text of 6 Thomp. & Cook 387 (Smith v. Starr) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Starr, 6 Thomp. & Cook 387, 11 N.Y. Sup. Ct. 123 (N.Y. Super. Ct. 1875).

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Opinion

Gilbert, J.

Thp answer does not admit that the guaranty was given as security for the payment of the. bond. If it had, there would have been no question that it passed to the plaintiff as an incident to the debt assigned to him. Jackson v. Blodget, 5 Cow. 202; Craig v. Parkis, 40 N. Y. 181. The bond being the principal obligation, a guaranty of the payment thereof generally [389]*389would pass with an assignment of the bond as security collateral thereto, and a formal assignment of the guaranty would not be necessary to vest the same in an assignee of the bond. McLaren v. Watson’s Exrs., 26 Wend. 425.

But the answer sets up that the guaranty was given to indemnify Mr. Childs, the plaintiff’s assignor, personally. Ho evidence having been given besides the guaranty itself, its legal effect can be determined only by an interpretation of the language thereof. The defendant thereby guarantees the payment of the bond “to Arthur Childs, the present owner and holder of said bond,” etc. We think the legal import of this language is an engagement to Childs only. The defendant, being a mere surety, cannot be bound beyond the scope of his engagement. Thus in Wright v. Russell, 3 Wils. 530, a bond, conditioned for ¿the honesty of one Baird, a clerk, was given by the defendant to one Wright, the employer of the clerk. Wright, subsequently to the giving of the bond,, entered into partnership with one G-. D. It was held that the defendant was no longer liable on the bond. The court said, “ The condition was confined to Wright only, and the breach assigned is the non-payment of the money to Wright and Delafield, which is not within the condition.” So in Barker v. Parker, 1 T. R. 287, it was held, that a bond, with a condition that a clerk should faithfully serve and account for money to the obligee and his executors, did not make the obligor liable for money received by the clerk in the service of the obligee’s executor. Lord Mansfield said: “ The bond in question is relative to the service with Pyott, the testator. It was given as an indemnity that the clerk should be faithful to him.” .See, also, Weston v. Barton, 4 Taunt. 673; Pemberton v. Oakes, 4 Russ. 154; Chapman v. Beckinton, 3 Q. B. 703; Gates v. McKee, 13 N. Y. 237; Ludlow v. Simond, 2 Cai. Cas. 1. The principle of all the cases on this subject is that a surety is not to be held beyond the precise terms of his contract. If the contract was entered into to assist a friend, it is to be construed strictly as mere matter of legal right.

Having no means of ascertaining the actual intentions of the parties to the contract in this case besides the words they used, we can only give effect 'to those words according to their plain and natural import. So construed the guaranty is, that the bond should be paid to Childs, his executors and administrators. We cannot say that it was given for the purpose of facilitating a sale [390]*390or other disposition of the bond, or that it was intended to be aught but'an indemnity to Childs and his representatives against loss. Childs having put it out of his power to receive payment, the purpose of the guaranty has been accomplished, and the guarantor is discharged. ' ' •

The judgment must be affirmed.

Judgment affirmed.

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Gilbert, J.

Thp answer does not admit that the guaranty was given as security for the payment of the. bond. If it had, there would have been no question that it passed to the plaintiff as an incident to the debt assigned to him. Jackson v. Blodget, 5 Cow. 202; Craig v. Parkis, 40 N. Y. 181. The bond being the principal obligation, a guaranty of the payment thereof generally [389]*389would pass with an assignment of the bond as security collateral thereto, and a formal assignment of the guaranty would not be necessary to vest the same in an assignee of the bond. McLaren v. Watson’s Exrs., 26 Wend. 425.

But the answer sets up that the guaranty was given to indemnify Mr. Childs, the plaintiff’s assignor, personally. Ho evidence having been given besides the guaranty itself, its legal effect can be determined only by an interpretation of the language thereof. The defendant thereby guarantees the payment of the bond “to Arthur Childs, the present owner and holder of said bond,” etc. We think the legal import of this language is an engagement to Childs only. The defendant, being a mere surety, cannot be bound beyond the scope of his engagement. Thus in Wright v. Russell, 3 Wils. 530, a bond, conditioned for ¿the honesty of one Baird, a clerk, was given by the defendant to one Wright, the employer of the clerk. Wright, subsequently to the giving of the bond,, entered into partnership with one G-. D. It was held that the defendant was no longer liable on the bond. The court said, “ The condition was confined to Wright only, and the breach assigned is the non-payment of the money to Wright and Delafield, which is not within the condition.” So in Barker v. Parker, 1 T. R. 287, it was held, that a bond, with a condition that a clerk should faithfully serve and account for money to the obligee and his executors, did not make the obligor liable for money received by the clerk in the service of the obligee’s executor. Lord Mansfield said: “ The bond in question is relative to the service with Pyott, the testator. It was given as an indemnity that the clerk should be faithful to him.” .See, also, Weston v. Barton, 4 Taunt. 673; Pemberton v. Oakes, 4 Russ. 154; Chapman v. Beckinton, 3 Q. B. 703; Gates v. McKee, 13 N. Y. 237; Ludlow v. Simond, 2 Cai. Cas. 1. The principle of all the cases on this subject is that a surety is not to be held beyond the precise terms of his contract. If the contract was entered into to assist a friend, it is to be construed strictly as mere matter of legal right.

Having no means of ascertaining the actual intentions of the parties to the contract in this case besides the words they used, we can only give effect 'to those words according to their plain and natural import. So construed the guaranty is, that the bond should be paid to Childs, his executors and administrators. We cannot say that it was given for the purpose of facilitating a sale [390]*390or other disposition of the bond, or that it was intended to be aught but'an indemnity to Childs and his representatives against loss. Childs having put it out of his power to receive payment, the purpose of the guaranty has been accomplished, and the guarantor is discharged. ' ' •

The judgment must be affirmed.

Judgment affirmed.

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