A.W. Todebush Company, a corporation, contracted with plaintiff for building materials to be delivered at buildings owned by it. Plaintiff refused to deliver except for cash or a guaranty of payment. Defendant thereupon signed and delivered the following:
"June 7, 1911.
"J.P. DUFFY COMPANY,
"51st Street Second Avenue, Brooklyn, N.Y.:
"GENTLEMEN. — Your firm having taken an order from A.W.Todebush Co. for the delivery of brick, lime, plaster, etc., to their buildings on the west side 6th Ave., between 73rd and 74th Streets, I hereby agree to be responsible for the payment of your bills for materials delivered to this job, and if A.W.Todebush Co. do not pay you for the same within sixty days after the delivery of the material, I will pay same myself as a primary obligee.
"AUG. TODEBUSH."
A.W. Todebush Co. was a partnership which had no interest in the buildings referred to. Defendant was connected with neither the corporation nor the partnership, but his son, August W. Todebush, Jr., was a member of the partnership and was also the president of the corporation.
The action is brought on the guaranty to recover a balance due for building materials delivered to the corporation. *Page 299 The complaint alleges that "by the words `A.W. Todebush Co.' in said instrument, both plaintiff and defendant referred to and meant `A.W. Todebush Company.'" The answer denies this allegation and the only evidence tending in the slightest degree to show that defendant intended to guarantee the debt of the corporation rather than a possible debt of the partnership was given by the son, August W. Todebush, Jr., who testified over objection that the corporation owned and was putting up the buildings and that the partnership was doing no work on the job. He does not testify that his father, the defendant, knew that plaintiff was dealing with the corporation. The Appellate Term (139 N.Y. Supp. 112) on this evidence enforced the guaranty as one which by the intention of the parties covered a transaction with A.W. Todebush Company. The Appellate Division (157 App. Div. 688) held that the letter of the guaranty could not be extended so as to apply to the corporation by extraneous proof as to the intention of the parties to it or by presumptions arising from surrounding circumstances.
The weakness of the plaintiff's case as here presented depends primarily, not upon the proper application of the rule against changing the plain terms of written guaranties by extrinsic evidence of intention or surrounding circumstances, but upon a total failure of proof, competent or incompetent, from which it could be inferred that defendant knew that plaintiff's contract was with A.W. Todebush Company and not with A.W. Todebush Co., or that he intended to guarantee a debt of the corporation and not of the partnership.
If it had appeared that plaintiff was prepared to establish, directly or inferentially, that defendant understood that he was promising to pay the debt of the corporation, it would then be necessary to decide whether or not such evidence was competent under the rule laid down in Grant v. Naylor (4 Cranch, 224) and like cases, but *Page 300 plaintiff was given every opportunity to make such proof in the trial court and it made no effort to connect the defendant even in intent with the debt sued on.
The judgment of the Appellate Division should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, CUDDEBACK, CARDOZO and SEABURY, JJ., concur.
Judgment affirmed.