(dissenting). The pertinent part of the guarantee which defendant gave reads as follows: “ Henry Rosenfeld, Inc. guarantees to Sales Corp. the payment of all the accounts receivable assigned to Sales Corp. by Jerry Gilden Fashions, Inc. except for the nonpayment of said accounts receivable by reason of the financial inability of said account debtors to pay the same. Henry Rosenfeld, Inc. acknowledges that it has examined statements of Sales Corp. indicating that the accounts receivable assigned to it referred to above aggregate approximately $73,000 as of June 1, 1963.”
Plaintiff’s comptroller, Philip Fine, testified that on June 1, 1963 the net debit balance due plaintiff was $75,524.07. This figure was arrived at by deducting various credit items from the approximately $100,000 of assigned accounts receivable. Surely, it cannot be said that $100,000 is “approximately $73,000” as a matter of law, and I should think a jury could reasonably find that the quoted words were intended to refer to the figure of $75,524.07. Put otherwise, a jury could find, as defendant’s president testified, that the parties intended a guarantee of defendant’s net debit balance.
The facts concerning the origin and disposition of the credit items tend to support defendant’s contention that it was to be entitled to their benefit. Fine testified, “ These credit balances arise from the fact that very frequently customers, in making payments, do not deduct credits which had been issued by the dress manufacturer, or maybe as a result of an overpayment, or a payment which is not clearly indicated as to what it covers.” Plaintiff’s position is that if an assigned account receivable is overpaid by the assignor’s customer, thus creating a credit in favor of the customer, and if the customer does not ask for a refund of the overpayment, then it may be retained by the assignee. Thus in the present case, credit items in the amount of $2,247.03 were claimed by customers, and at the end of the year 1963 the balance then remaining unclaimed, $24,368.37, was written off and taken into plaintiff’s profit and loss account as income. The consequence is that, on plaintiff’s interpretation of the guarantee, it will ultimately have received not only payment of the gross receivables covered by the guarantee but will be $24,368.37 additionally in pocket, subject to the possibility that customers may one day demand return of their overpayments — a possibility deemed so remote that the overpayments were written off as no longer credits.
Regarding plaintiff’s practice with respect to the credits, Fine said, “I have never worked for any other factors but I do understand that this is a part of their income.” The jury may or may not have been impressed by this guarded testimony as to custom, and, even if impressed, jurors might still have asked themselves, why, if it was advisable to warn defendant in the guarantee agreement of the approximate amount for which it was committing itself, the amount inserted should have been so close to the balance after credits and so far from the balance before credits. It must be kept in mind that this appeal is from a directed verdict.
Accordingly, I believe the judgment below should be reversed and a new trial ordered.
Eager, Steuer and Tilzer, JJ., concur in Per Curiam opinion; Botein, P. J., dissents in an opinion in which Stevens, J., concurs.
Judgment modified, on the law and on the facts, by reducing the verdict to $28,391.26, with appropriate interest, and, as so modified, affirmed, with $50 costs and disbursements to respondent.
Settle order on notice.