#### George W. Crooks et al., Plaintiffs, *v.*Betsey R. Propp, Defendant.

(Supreme Court, Franklin Special Term,

July, 1900.)

1. Guaranty — When insufficient.

A letter, written to prospective vendors, relative to parties named Singer and Romanoff, who subsequently formed a partnership and bought goods of the vendors, accompanying an order by Singer for the first bill of goods stating: “ He (Singer) wishes to purchase a full line of groceries and I recommend him to you. They (Singer and Romanoff) are perfectly reliable and will pay as soon as bills mature. Any favor conferred upon Mr. D. H. Singer will be appreciated by me ”, is not a guaranty, upon the part of the writer of the letter, of the debts, present or future, of Singer or of those of Singer and Romanoff.

*2.*Same — When not continuing.

Assuming the letter to constitute a guaranty, it is not a continuing one and applies only to the first bill of goods.

Action upon a guaranty.

Badger *&*Cantwell, for plaintiffs.

W. J. Hears, for defendant.

Houghton, J.

The defendant wrote the plaintiffs a letter which is claimed to be a guaranty for goods sold by plaintiffs to one Singer, and Singer *&*Romanoff.

Singer *&*Romanoff were about to, and did subsequently, form a copartnership. Singer presented the letter and gave the order for the first bill of goods; subsequently other orders were given. Partial payments were made, exceeding the first purchase.

The language of the letter relied on is, *“*He (Singer) wishes to purchase a full line of groceries and I recommend him to you. They (Singer *&*Romanoff) are perfectly reliable and will pay as soon as bills mature. Any favors conferred upon Mr. D. H. Singer will be appreciated by me

*310This does not amount to a guaranty. A guaranty is to be construed in conformity with the rules governing the.construction of contracts generally, and must accord with the apparent intention of the parties; and when the meaning of the language used is plain, or is ascertained, the guarantor is entitled to the application of the strict rule governing the contracts of sureties and cannot be held beyond the plain terms of the contract. Evansville National Bank v. Kaufmann, 93 N. Y. 273.

In the case of Russell v. Clark, 7 Cranch, 69, the correspondence was somewhat similar to that in the present case. The letters in that case which were claimed to constitute a guaranty' stated, “ We do ourselves the pleasure of introducing Hurray *&*Co. to your correspondence as a house on whose integrity and punctuality the utmost dependence may be placed; they will write you the nature of their intentions, and you may be assured of their complying fully with any contract or engagements they may enter into with you ”; and in another letter, *“*we have now to request that you will render them every assistance in your power ”.

The Supreme Court concluded that although the language was strong, yet it could not fairly be construed as an engagement on the part of the defendant to become answerable for such debts as might be contracted. It certainly cannot be said that the language in the present case is stronger than it was in that.

But even if the letter was a guaranty, it was not a continuing one, and should apply only to the first bill purchased. Rogers v. Warren, 8 Johns. 119;. Schwartz v. Hyman, 107 N. Y. 562. Payments were made more than enough to cover the first order for goods, and the guarantor is entitled to have such payment apply on such first order. Whitney v. Groot, 24 Wend. 82.

It makes no difference that the plaintiffs relied upon the letter as a guaranty, if it was not such in fact.

The complaint must be dismissed, with costs.

Complaint dismissed, with costs.