#### J. P. Duffy Company, Respondent, *v.*August Todebush, Appellant.

First Department,

July 10, 1913.

Guaranty and surety—extraneous proof not admissible to change tenor of written guaranty.

Where, in an action upon a written guaranty, whereby the defendant guaranteed to pay for materials furnished by the plaintiff to “A. W. Todebush & Co.,” a copartnership, it appeared that the copartnership mentioned was not engaged in building, and that the materials were furnished to “ A. W. Todebush Company,” a corporation, the written guaranty cannot be extended by extraneous proof as to the intention of the parties so as to make the guarantor liable for materials furnished to the corporation, and the complaint should have been dismissed. Laughlin, J., dissented.

Appeal by the defendant, August Todebush, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of February, 1913, resettling a prior order entered in said clerk’s office on the 6th day of February, 1913, reversing a judgment of the City Court of the City of New York in plaintiff’s favor, unless the plaintiff stipulated to reduce the said judgment to $2,000, in which case judgment was affirmed.

*Otto A. Samuels,*for the appellant.

*Jeremiah J. Coughlan,*for the respondent.

Scott, J.:

The action is upon a written guaranty, reading as follows:

> *689“ J. P. Duffy Company, *June*7,1911.

> “ 51st St., 2nd Ay.,

> “ Brooklyn, N. Y.:

> “ Gentlemen.—Your firm having taken an order from A. W. Todebush & Co. for the delivery of brick, lime, plaster, etc., to them buildings on the west side Sixth Av. between 73rd and 74th Streets, I hereby agree to be responsible for the payment of your bills for material delivered to this job and if A. W. Todebush & Co. do not pay you for same within sixty days after the delivery of material, I will pay same myself as a primary obligee.

> “(Signed) AUG. TODEBUSH.”

At the time this guaranty was given there was in existence a copartnership under the name of “A. W. Todebush & Company” (the name used in the guaranty), and also a corporation known as “A. W. Todebush Company.” It was the latter which was engaged in erecting the buildings and purchasing the materials referred to in the guaranty. The copartnership was not concerned in the building enterprise, and doubtless the plaintiff believed and understood that the guaranty extended to the corporation. It is very probable also that the guarantor supposed that he was guaranteeing the corporation. The question is whether a guaranty can, under these circumstances, be extended by extraneous proof as to the intention of the parties to it, or by the presumption arising from the surrounding circumstances, so as to apply to a different person from that named in the guaranty itself. We think not. The leading case in this country is *Grant*v. *Naylor*(4 Cranch, 224). In that case the defendant had given a written guaranty in the form of a letter addressed to John and *Joseph*Naylor at Wakefield, in which the writer guaranteed any arrangement that his son Alexander might enter into with the firm. Suit was brought upon this guaranty by the firm of John and *Jeremiah*Naylor. It was proved that there was no firm at Wake-field trading under the name of John and Joseph Naylor, and there was other evidence which strongly indicated that the letter was intended to be addressed to John and Jeremiah Naylor. The Supreme Court of the United States held, in an opin*690ion written by Chief Justice Marshall, that extrinsic evidence could not be received to show that the guaranty was intended to cover a firm other than the one named therein. The court said: *“*That the letter was really designed for John and Jeremiah Naylor cannot be doubted, but the principles which require that a promise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony, originate in a general and a wise policy which this court cannot relax so far as to except from its operation cases within the principles.” In *McGovney*v. *State*(20 Ohio, 93) defendants were sued as sureties upon the bond of Joseph L. Findlay, deceased. The bond, however, recited that it was given to secure the faithful performance of their duties by the executors of James L. Findlay, deceased. Findlay and Paterson were the executors of *Joseph*L. Find-lay but not of *James*L. Findlay, and there could be no doubt that the intention had been to give security for the performance of their duty with respect to the estate of which they were executors. It was held, however, that- extrinsic evidence could not be considered to change the plain terms of the bond. These cases are but illustrative of the rule generally applied to cases like the present, of which there are many instances in the books. (See *Barns*v. *Barrow,*61 N. Y. 39, and cases cited.)

The present case is clearly distinguishable from those in which there is an ambiguity upon the face of the instrument. *(Beakes*v. *Da Cunha,*126 N. Y. 293; *Powers*v. *Clarke,*127 id. 417.) It is quite true, as remarked in *Gamble*v. *Cuneo*(21 App. Div. 413), that *“*Where the question is as to the meaning of the language of the contract there is no difference between the contract of the surety and that of anybody else. * * * In the case of a surety, as in the case of anybody else, when it becomes necessary to construe the contract the usual rules are to be used, and it is to be interpreted like any other paper. ” In the case at bar, however, there is no room for construction or interpretation. The guaranty is perfectly clear and plain as it stands. It undertakes to guarantee A. W. Todebush & Co. To so read it as to turn it into a guaranty of A. W. Todebush Company would be, not to construe it, but to change its tenor. This cannot be done.

*691It follows that the determination of the Appellate Term and the judgment of the City Court must be reversed and the complaint dismissed, with costs to appellant in all courts.

Ingraham, P. J., and Dowling, J., concurred; Laughlin, J., dissented.

Determination and judgment reversed and complaint dismissed, with costs to appellant in all courts. Order to be settled on notice.