Louis Bossert and John Bossert, Appellants, v. George W. Striker, Respondent

Louis Bossert and John Bossert, Appellants, v. George W. Striker, Respondent. Second Department, December 30, 1910. Contract — agreement by executor to pay for materials furnished for improvement of estate — when executor personally liable. Defendant, an executor, gave an order on the plaintiff in the following form: “ You are hereby authorized to furnish all material for above buildings as per contract with Wm. W. * * * payment for materials furnished and to be furnished is hereby guaranteed as before. Deliver same in the name of Est.of Chas. W. Smith,” signing the same “Estate of Chas. W. Smith, George W. Striker, Executor.” This instrument referred to the acceptance of a former order in which the executor over the same form of signature guaranteed to the plaintiff payment to a certain amount for materials furnished to the contractor making improvements on the lands of the estate; Reid, that the undertaking of the defendant was original and that an action thereon was properly brought against him personally. Hirschbers, P. J., dissented. , Appeal by the plaintiffs, Louis Bossert and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 5th day of October, 19.09, upon the dismissal of the complaint by direction of the court' at the close of plaintiffs’ case on a trial at the Kings County Trial Term. This action is brought to charge the defendant as guarantor with a balance due for certain building- material. It appears that the defendant subscribed the following paper: “ Mr. George W. Striker, Executor Estate of C. W. Smith: “ Please pay to the order of Messrs. Louis Bossert & Son, for material to be delivered for buildings at 119-121 Elizabeth St. and' 158 Mott St., the sum of Seventy-three hundred and thirty dollars and deduct the same from my account. “WILLIAM WINBERG. - “For and in consideration of the sum of One dollar, the receipt whereof is hereby acknowledged, I hereby accept the above order, and guarantee to Messrs. Louis Bossert & Son, of the Borough of Brooklyn, City and State, of New York, the payment of Seventy-three hundred and thirty Dollars ($7330.00/100 dollars) for mate- ' rial to be furnished to William Winberg. This guarantee is given to induce Messrs. Louis Bossert & Son to furnish material to Mr. William Winberg for the above amount of Seventy-three hundred and thirty dollars and I agree to make payments as work progresses. “ESTATE OF OHAS. W. SMITH, “ George W. Striker, Executor. “ Messrs. Lotus Bossért & Son : “ Gentlemen.— Yon are hereby authorized to furnish all materials for above buildings as per contract with Wm. Winberg, payment for materials furnished and to be furnished is hereby guaranteed as before, Deliver same in the name of Est. of Chas. W. Smith. “ESTATE OF CHAS. W. SMITH, “ George W. Striker, Executor. “ Louis Bossert & Son, Grand St. & Newtown Creek, “Brooklyn, N. Y.” In their bill of particulars the plaintiffs state that the “ first guarantee was executed some time in the year 1905,” to secure $7,330, “ on which no claim is made; ” that'the “ second guarantee” was executed on or about February 26, 1906 ; and that the “ contract liability between the plaintiffs and William Winberg, after the execution of the second guarantee * * * was on oral or telephone orders, and the dates of the same are the dates when the goods were furnished, as will appear by the bill or statement of merchandise furnished hereto annexed.” The defendant “ admits ” that as executor of the will of Charles W. Smith, deceased, and for the benefit of the estate, in consideration that plaintiffs would sell certain building materials to Winberg, and for the benefit of the estate and in its name, and. not intending to render himself personally liable as the plaintiffs well knew, he" guaranteed and promised to be answerable for the payment of the price of materials to be sold to the amount of $7,330 and no more; that the materials were to be delivered at certain buildings of which the testator had died seized and possessed, and which his said executors held in trust. He denies that he ever made, either as executor as aforesaid or individually, any guarantee except for the said sum, which has been fully paid. - At the close of plaintiffs’ case defendant moved for dismissal on on the grounds, first, that the papers on their face are an obligation of the estate and not the defendant personally, and, second, that the guarantee is to pay the amounts due under a contract between Winberg and these plaintiffs, and the only proof of any contract is that for the $7,330, and the receipts are in full therefor. The motion was denied under exception, but after the defendant’s opening the court said that if the second guarantee, made in February, 1906, was a continuation of the first guarantee, and if the goods were not delivered to Mr. Winberg —- if he was not in charge of the work — that the defendant could not be bound. The court further said that the second guarantee sufficiently referred to the first guarantee, and undoubtedly referred to the $7,330, which was the subject of the contract with Winberg. And after further discussion the court said: “ I am inclined to hold that under this second guarantee * * * there is no personal liability of this defendant,” wherefore it granted the motion to dismiss, under exception. J. Stewart Ross [Frank Obernier with him on the brief], for the appellants. Rufus O. Catlin [ James C. Cropsey with him on the brief], for the respondent. [MAJORITY — Jenks, J. :] Jenks, J. : We think that the “second guarantee” may be regarded as an order upon the plaintiffs to furnish materials of the kind required by the contract of Winberg, but to be delivered in the name, i. e., to the estate of Charles W. Smith. Payment is promised, not only for the materials furnished, but for those to be furnished, and payment is guaranteed as before, i. e., as the work progresses. It is ‘true that the plaintiffs plead on a guarantee, but we may gather from the complaint that the materials were to be' delivered at certain specified buildings (which it appears were the property of the estate), and, as we have said, the “ second guarantee ” indicates, that there was a direct order for delivery to the estate. We think, then, that the circumstances .admit a consideration that this Undertaking was original in its, character. (See Ward v. Hasbrouck, 169 N. Y. 407.) The action was properly brought against the defendant per- sonally. (New v. Nicoll, 12 Hun, 431; affd., 73 N. Y. 127, and authorities cited.) The judgment is reversed and a new trial is granted, costs .to abide the event. Woodward, Thomas and Carr, JJ., concurred; Hirschberg, P. J., dissented. Judgment reversed and new trial granted, costs to abide the event.