Luther E. Wilson et al., Respondents, v. Henry S. Edwards, Appellant

Luther E. Wilson et al., Respondents, v. Henry S. Edwards, Appellant. (Argued September 29, 1876; decided November 14, 1876.) This was an action upon a contract of suretyship, by which defendant became surety for the faithful performance by one Van Vrankin of his duties as agent of plaintiffs under a written contract, by which he was employed to sell hay and other produce on commission. The case has been once before to this court and was decided by the Commission of Appeals. (See Mem., 61N. Y., 659.) The prominent point presented, i. e., as to the construction of the contracts, was the same as there determined. The court held, that the former decision was final and conclusive, as the evidence was substantially the same as .on the former trial. By defendant’s contract he agreed, in case of default o.n the part of Van Vrankin in paying over the proceeds of sales, that he would make good the default and pay any deficiency, on condition that demand be first made of Van Vrankin and notice of deficiency given to defendant. It also provided that “in case Van Vrankin should, without bad faith on his part, make sales of hay to a party or parties -from whom payment cannot be obtained by him, then he is not to be held liable for the first carload so sold to any such party on which payment should be lost.” The alleged default was in the non-payment of the proceeds of the sale of thirteen carloads of hay. Defendant’s counsel moved for a nonsuit on the ground, among others, that there was no evidence that Van Vrankin had received any money for the hay when notice was given defendant of his default. The motion was denied. Held, no error; that the liability of defendant was not limited to a defaidt by Van Vrankin in accounting for and paying over money received by him; that the clause quoted showed that Van Vrankin was tobe responsible, for and made defendant surety for sales not coming within the exception stated. S. W. Jackson for the appellant. E. W. Paige for the respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for affirmance. All concur except Miller, J., not voting. Rapallo, J., absent. Judgment affirmed.