The defendant’s contract was to guarantee “ any bills the Retail Cigar and Tobacco Dealers’ Association of Hew York may contract” with the plaintiffs from April 29, 1905, to January 1, 1906, with a proviso that the amount of credit should not exceed $5,000 at any one time. I think the defendant had the right to impose conditions upon which his liability should depend, and it seems to me that he did impose as a condition that the credit extended to the association should not exceed $5,000. . It is not a limit of the amount of guaranty, but a condition upon which the guaranty is to be effected. The evidence is that on January 6, 1906, the total credit extended to the association was $5,200.67. Subsequently, on January 10,1906, the association paid $2,000 on account, but the condition upon which the defendant was willing to guarantee the payment of bills of the association was broken by the plaintiffs extending credit to an amount exceeding $5,000, and I think the defendant was relieved from liability.
The case of Farmers & Mechanics' Bank v. Evans (4 Barb. 487) is in point, and what was said in that case I think applies here: “ It appears to me that the defendant intended to restrict the whole amount of the indebtedness of I & K at any one time, to the plaintiffs, to $5,000. He contemplated that I & K would from time to time require money in their business, and he was willing to become responsible for any sums which the plaintiffs should loan them, provided the whole amount should not at any one time exceed $5,Q00. He was unwilling to become surety for I & K to the extent of $5,000 in case they were permitted to incur a larger debt at the bank. He may have had good reason for inrposing this restriction. There are many men very competent to manage a small business successfully, who, when their business is extended, and large liabilities are incurred, become entirely incompetent to its *80successful management. * * * , However this may be, the defendant had a right so to reason, and lie had the right, with or without reasons, to prescribe the terms, and to say when and under what circumstances,, lie would become liable to the plaintiffs as the guarantor of I & K, and if the plaintiffs have not brought themselves within those terms, he is not liable. This is not a case where the guarantor is liable for a certain limited sum, although the whole amount of the credits or indebtedness may be much larger.”
In the cases relied on by the plaintiffs the terms of the guaranty were different, and I do not think they are in point.I think the judgment should be reversed.
Judgment affirmed, with costs. Order filed.