#### John W. Birch and Ano., *v.*Jose de Rivera.

*(Supreme Court, General Term, First Department,*

*Filed July 9, 1889.)*

1. Contract—Of guaranty—When cannot be altered or extended.

A guaranty does not continue in force after a change in the principal debtor’s firm unless so expressed in the instrument, either directly or by clear implication, and where the contract is to guarantee a copartnership firm composed of certain persons, that contract cannot be altered or extended without the guarantor’s consent.

3. Same—Change of firm—Effect of.

Nor is the guaranty withdrawn from the rule where there has been a change in the firm, where the guarantor used the words “house” and " firm,” as equivalent expressions, and referred to the particular individuals comprising the firm, with whose business qualifications he was acquainted, etc.

3 Same—Liability of guarantor, limited to what.

In an action on a guaranty there was a change in the firm in whose favor the guaranty was given prior to their failure. *Held,*that the fact that the plaintiffs were not notified of the change is immaterial, the defendant’s obligation being limited to the repayment of moneys advanced for the original firm while in business together, and constituting that particular firm.

Motion by the defendant for a new trial on his exceptions ordered to be heard in the first instance at general term.

*David Milliken, Jr.,*for pl’ffs; *Stern & Myers,*for deft.

Barrett, J.

This is an action upon a guaranty, which reads as follows :

*771Heidelberg, Germany, *October*28, 1874. *Messrs. Mildred, Gtoyenneche & Co., London :*

> Gentlemen—The house of J. de Rivera & Co., of New York, have informed me of your suggestion that I might guarantee to you an open credit of £5,000 in addition to the £5,000 that they already enjoy from you in the shape of an open credit. I am so well satisfied with the manner in which the said house is working, that I have still left in their hands not only the one hundred and odd thousand dollars that I left with them when I withdrew from the firm, but I have increased the loan to some extent. Still I know that they must have credits in England to obtain consignments from the West Indies and South America, and accordingly I cordially hereby guarantee to you the repayment of the before mentioned additional credit of £5,000 sterling, my said, guarantee to hold good until cancelled.

> Yours very truly,

> (Signed) J. De RIVERA,

> *Damstader Hof, Heidelberg.*

The plaintiffs carry on business in London under the firm name of Mildred, Goyenneche & Co. The testimony shows *primd facie,*that they are the same persons to whom the guaranty was given. At the time they received the guaranty, the house of J. de Rivera & Co. was composed of Henry C. de Rivera and Antonia M. Ros. It so continued until the year 1877, when Antonio M. Ros went out of the firm and Salvador Ros came in. From that time until 1886, the firm remained unchanged. In 1886, the firm failed, owing to the plaintiffs, the full £5,000 specified in the guaranty. This was entirely for moneys paid by the plaintiffs, under the credit, after the change of partners in 1877; and the question is, whether the defendant is responsible therefor under this guaranty.

There is no doubt that this is a continuing guaranty. The entire instrument so indicates and the concluding expression, “ my said guarantee to hold good until cancelled,” is conclusive. That, however, only refers to the duration of the credit, not to firm succession.

The rule in England has always been that a guaranty does not continue in force after a change in the principal debtor’s firm, unless so expressed in the instrument, either directly or by clear implication. The principle is plain. A man may be willing to guarantee A and B, but be unwilling to guarantee A and 0. So he may be willing to guaratee a firm composed of A and B, but not a firm .composed of A and 0. He may guarantee solely on the strength of B’s ability or caution. At all events, his contract is to guarantee a copartnership firm composed of certain persons, and that contract cannot be altered or extended without his consent.

The case of *Backhouse*v. *Hall,*(6 Best & Smith, 507; 118 Com. Law Rep., 505), is directly in point. Lord Blackburn said it was a hard case, as the plaintiffs did not know of the change of membership for some years, whereas it was known *772to the guarantor. But the rule was deemed inflexible, and the court observed that “ if the parties to a guarantee, given to a firm, mean that it is to continue in force, though there be a change of parties, it is very easy to express that. See, also, *Strange*v. *Lee,*3 East., 490; *Weston*v. *Barton,*4 Taunt., 673; *Simson v. Cooke,*8 Moore, 588; *Myers*v. *Edge,*7 T. R., 254; *Dry*v. *Davy,*10 Ad. & E., 30; *Solvency M.*G. *Co.*v. *Freeman,*7 H. & N., 17; *Pemberton*v. *Oakes,*4 Russ, 154.

The present guaranty is not withdrawn from the general rule, because of the expression “ the house of J. de Rivera.” That signified nothing more than the firm or partnership of J. de Rivera & Co.

That the guarantor used the words “house”and “firm,” as equivalent expressions is evidenced by this language: “I am so well satisfied with the manner in which the said house is working, that I have still left in their hands not only the one hundred and odd thousand dollars that I left with them when I withdrew from the firm, but 1 have increased the loan to some extent.” Thus the house is not treated as an institution or collective body or joint stock company, with fluctuating membership, as in *Metcalf*v. *Bruin,*12 East., 400. On the contrary, the writer evidently refers to the particular individuals whom he left in the firm, and with whose business qualifications, experience, character and judgment, he was acquainted. These characteristics it may fairly be presumed, he relied on; and for individuals possessing these qualifications, he was willing to assume responsibility.

The cases where peculiar or added force is given to the expression, “the house of ” so and so, are those of indemnity bonds for personal service, such as *Barclay v. Lucas*(3 Doug., 321), and see note to *Lord Arlington*v. *Merricke*(2 Wms. Saund., 414a). That was a case of security to the house for the fidelity of a clerk, and Lord Mansfield held that a continuous and successive indemnity was intended. As was said in the note above cited, “ for the fidelity of a clerk in the shop and counting-house, * * * a change of partners is said to make no difference, but the surety still continues.”

This case of *Barlcay*v. *Lucas*has been repeatedly criticised and doubted (1 N. R., 42; 4 Taunt., 681). In the latter case Lord Mansfield himself, in following the general and settled rule, observed: “This being the construction of the instrument from almost all the cases, in truth, as we may say from all (for though there is one adverse case of *Barclay*v. *Lucas),*the propriety of that decision has been very much questioned,” etc.

And in *Strange*v. *Lee (supra),*Lord Ellenborough suggested a possible view upon which *Barclay*v. *Lucas*might be maintained.

“In *Barclay*v. *Lucas*the words were different from the present case; the clerk was to be taken into the service of *773the obligees as a clerk in the shop and. counting-house, which might be supposed to mean the same house, however the individual partners might change.”

The wide difference between such a case and that of a guaranty for the house of a principal debtor is apparent. In the latter case “the house” could not, without an express stipulation to that effect, well be supposed to mean the same house, however the individual partners might change; and the guarantor’s responsibility must have been understood to end when the persons for whom he agreed to be responsible ceased to constitute the house.

The fact that the plaintiffs were not notified of the change is immaterial. They may have an action against the firm as it existed before the change because of failure to notify them of such change, or to publish the dissolution. That proceeds upon another principle, namely, tibe presumption attached to continuous firm dealings without notice.

The guarantor, however, is not responsible for the state of facts which might justify a recovery against the original members. There is no evidence here that he was aware of the change. He seems to have been as much without notice as the plaintiffs themselves. But were it otherwise, we may say, in the language of Lord Blackburn, in *Backhouse*v. *Hall (supra),*“nothing is stated to show either that the defendant was under any obligation to inform the banking house of that fact or that he took any steps to conceal it.”

The defendant’s obligation is not to guarantee any judgment which, owing to collateral circumstances, the original members of the firm may have become hable to; but the repayment of moneys actually advanced for them, while they are in business together and together constitute the particular firm.

We find no cases in this country where this precise question has been considered. *The Bank of Poughkeepsie*v. *Phelps*(97 N. Y., 50), is cited, but in that case the change was in the guarantor’s firm. It is, of course, entirely inapplicable.

It seems that, since the .failure, the plaintiffs have received some *£2,000,*upon account of Rivera & Co.’s indebtedness. The evidence falls short of showing that this sum was paid by the defendant, but even if that had clearly appeared, it would not have affected the question of his liability. This depends wholly upon a proper construction of the contract, and the defendant’s notions upon the subject, as was said by Lord Blackburn, in *Backhouse*v. *Hall (supra),*are of no moment.

The exceptions should, therefore, be sustained and a new trial ordered, with costs to defendant to abide the event.

Van Brunt, Ch. J., and Daniels, J., concur.