#### ROUGET v. HAIGHT et al.

(Supreme Court, General Term, First Department.

June 15, 1894.)

Guaranty—Liability or Guarantor.

In an action for money alleged to have been advanced by plaintiff to defendant T. under an agreement that, on performance of certain conditions, the money should belong to T., otherwise it should be repaid to plaintiff, with interest, to which agreement defendant E. was a party as guarantor, no recovery can be had against E. for money advanced before the agreement, unless E. knew of such prior advances.

Appeal from circuit court, New York county.

Action by Edward- Rouget against Theodore Haight and Ellen J. H. Haight. From a judgment entered on a verdict in favor of plaintiff, defendants appeal.

Modified.

Argued before O’BRIEN, FOLLETT, and PARKER, JJ.

Wm. E. Wyatt, for appellants.

Samuel Cohn, for respondent.

O’BRIEN, J.

This action was brought to recover the sum of $7,250, upon an agreement dated July 9, 1887, which provided that *409a sum of money not to exceed $10,000 should be advanced to the defendant Theodore Haight by the plaintiff; that such sums so advanced were upon the death of plaintiff and his wife to become the property of the defendant Theodore Haight, provided that during the lives of plaintiff and his wife interest was paid at the rate of' 15 per cent, per annum. On failure, however, of Haight to pay interest, then the whole sum was to become due, and the defendant Ellen J. H. Haight agreed to repay such advances. Plaintiff claims to have advanced the amount sued for, and that, the interest being unpaid, the whole sum claimed to have been advanced has become due. Upon the trial it appeared that of the $7,250 the sum of $2,000 was advanced before the making of the agreement, and that at the various times when advances were made promissory notes were given, payable on demand, instead of receipts. The notes having been surrendered upon the trial, the court submitted the question of the amount of indebtedness, and in effect directed a verdict for the full amount and interest against both defendants. We shall treat the case then as though the verdict was directed.

As regards the defendant Theodore Haight, we think the verdict was right; for though, upon the other evidence in the case, a question might have been presented as to whether the moneys were advanced under the agreement or upon the promissory notes, this was= set at rest by the testimony as to the manner in which the notes were given, and the purpose for which they were received, and by the evidence of the defendant Theodore Haight, who admitted the-receipt of $7,250, which he stated he was to invest under the agreement, the money to be his in the end, and that no part of such sum was repaid. His express admission, together with the other evidence in the case, was conclusive upon the liability of the defendant Theodore Haight, and removed any doubt that might otherwise exist as to whether the moneys were advanced on the notes or under the agreement. A different question, however, arises as to the liability of the defendant Ellen J. H. Haight in regard to the $2,000 which was concededly given to her husband, Theodore, prior to the-making of the agreement. It is not claimed that any of the money was advanced to Mrs. Haight, her status being that of a guarantor under the agreement, by the terms of which she was to repay such advances of money as might be made to her husband only in case her husband should die before the plaintiff and his wife, or upon failure to pay interest It was not made to appear that when she signed the agreement she knew of any prior advances, nor is there anything in the language of the agreement itself which binds her to repay past loans. In the absence of such testimony, and considering the language of the agreement itself, which in express terms-refers to advances thereafter from time to time to be made, we are furnished with no good reasons upon which her liability for past advances can be predicated. Ho motion for a new trial was made, nor was any order entered denying such a motion, nor any appeal' taken therefrom; -and, though we are thus confined to a consideration of questions of law, the question as to Mrs. Haight’s liability is directly raised by the exception taken to the refusal of the court *410to charge the jury, or to hold that, in order to render her liable, the money must have been advanced under or pursuant to the agreement. As the evidence stood, therefore, at the close of the trial, we think it was the duty of the court, while directing a verdict against the husband for the full amount, to have deducted from ihe amount chargeable against the wife the $2,000 which had been given to the husband prior to the making of the agreement, and for which, by the terms thereof, she was not liable. The judgment as to Theodore Haight should accordingly be affirmed, with costs and disbursements, and the judgment against Ellen J. H. Haight modified by deducting therefrom $2,000 and interest, and, as so modified, affirmed, with costs and disbursements to her. All concur.