Benjamin Griffen, Respondent, v. Abraham Alexander Edelman, Appellant

Benjamin Griffen, Respondent, v. Abraham Alexander Edelman, Appellant. First Department, November 3, 1911. Contract — guaranty of payment — Statute of Frauds — mutuality — part payment by guarantor — evidence — quantity and purchase price of goods sold. A written memorandum providing that the person signing the samó¡ . guarantees all bills as they may become due for goods sold to his brother by a certain person, not to exceed the sum of $500 of unpaid bills for goods which the brother might buy during one year from date, and further providing that when the brother shall owe the promisee the sum of $500 the guarantor shall be notified, sufficiently complies with the Statute of Frauds. Such contract is not unenforcible for lack of mutuality. As such guaranty is limited in amount to $500 a payment 1?y the guarantor on account of sales made to the brother reduced his obligation under the guaranty pro tanto.. Evidence in an action to recover on said guaranty examined, and held, . insufficient to show the amount of the guarantor’s liability'by reason of a failure to prove the quantity and price of the goods purchased. Appeal by the defendant, Abraham Alexander Edelman, .from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on'the 1st day of December, 1910, upon the verdict-of a' jury, for $500, and also from an order entered in said clerk’s office on the 23d day of December,. 1910, denying the defendant’s motion for a new trial made upon the minutes. Charles J. Belfer, for the appellant. Moses Cohen, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: This action was brought on the following guaranty, viz.: “New York, Dec. Mth, 1908. “ I hereby guarantee the payment of all bills as they may come due for goods that my brother, Meyer Edelman, may buy of Benjamin Griffen of this city. “ This guarantee shall not exceed in amount the sum of $500 of unpaid bills which he may buy during one year from date. When Meyer Edelman shall owe Benjamin Griffen the sum of $500.00 I am to be notified and I will then notify Benjamin Griffen if I am willing to increase the guarantee. “A. A. EDELMAN.” It is undisputed that on February 8, 1909, the defendant paid the plaintiff on account of said guaranty the sum of $150.81. We are-not impressed by the argument in support of the contention that the memorandum is insufficient to satisfy the Statute of Frauds, and that the contract is unenforeible for want of mutuality. However, the appellant does call attention to two serious errors in the case. There can be no doubt that the defendant’s guaranty was limited to the sum of $500 for goods purchased within one year from its daté. Of course the guaranty was continuous in the sense that it was not limited to the first bill of goods ordered. It was, however, limited in time to goods purchased within one year, and in amount to the sum of $500. The payment by the defendant of the sum of $150.81 on account of his guaranty reduced his obligation thereunder pro tanto. We would be able to modify the judgment and to affirm it for the balance of the recovery weré it not for a defect in the proof as to the amount and value of the goods purchased by the said Meyer Edelman. The latter, who was not on speaking terms with the defendant, was called as a witness by the plaintiff and was permitted over objection and exception to state that he had purchased $531.77 "worth of merchandise from the plaintiff. The plaintiff claimed that that was the sum unpaid after deducting the payment of $150.81, made by the defendant. The witness vras then permitted to state, over proper objection and exception, that he then owed the plaintiff the sum of $531.77 for goods purchased, and that testimony constitutes all of the proof in the case on the amount of purchases made by Meyer Edelman, except certain signed slips, which were evidently delivered to the plaintiff by him or some of his employees whenever goods were obtained. But those slips fail. to show- the quantity or purchase price of the goods. A guarantor, is at least entitled to insist that the amount of his principal’s indebtedness be established by competent evidence, and that was not done in' this case, wherefore the judgment and order appealed from must be- reversed and a new trial ordered, with costs to appellant to abide event. Ingraham, P. J., McLaughlin, Laughlin and Olarre, JJ., concurred. ■ Judgment and. order reversed, new trial ordered, costs to appellant to abide event.