Luther E. Wilson et al., Appellants, v. Henry S. Edwards, Respondent

Luther E. Wilson et al., Appellants, v. Henry S. Edwards, Respondent. (Argued September 24, 1874; decided January term, 1875.) This was an action against defendant as surety for one Yan Yranken, who was employed under and.by virtue of a written contract by plaintiffs, as their agent to sell hay, straw, and country produce. Yan Yranken was, by the contract, to receive a specified commission, and was to render an account of all sales, and to pay over the proceeds, etc. Defendant, by a writing annexed to the contract, for a consideration expressed, agreed to become surety for the faithful performance on the part of Yan Yranken, and agreed, in case of default on the part of Yan Yranken, to make good the default and pay any deficiency. The alleged default arose out of the sale by Yan Yranken of a quantity of hay. Plaintiffs’ evidence tended to show that while Yan Yranken was so acting as plaintiffs’ agent, he advised them that he could sell, or had agreed with parties in Boston to sell them, the hay plaintiffs had on hand at thirteen dollars and fifty cents per ton net, and without any deduction for shrinkage, weight or wood. Plaintiffs decided to ship their hay to Boston on these terms, and Yan Yranken there sold it. Defendant’s evidence was to the effect that plaintiffs sold the hay to Yan Yranken. Plaintiffs were non-suited on the trial. This was sustained by the General Term, on the ground that the arrangement as to the hay in question was a modification, in a material point, of the original agreement, and so discharged the surety. Held (Dwight, C., dissenting), error; that the testimony would have authorized a finding that the transaction was simply a limitation of the agent’s power to sell, so that he could not sell for a less price than that which would yield thirteen dollars and fifty cents net, and that such a limitation was proper under the original contract, and was not a modification thereof, and that, therefore, the case presented questions for the jury. E. W. Paige for the appellants. S. W. Jackson for the respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for reversal. All concur; except Dwight, C., dissenting. Judgment reversed and new trial ordered.