Plaintiff, having taken an order for building materials from A. W. Todebush Company (a corporation), refused to make delivery, except for cash or upon a guaranty of payment, whereupon defendant delivered to plaintiff a guaranty in the following form:
“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 Av., between 73d 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 same within sixty days after the delivery of the material, I will pay same myself as a primary obligee.
“Aug. Todebush.”
At the time of the delivery of the guaranty there was a partnership known as A. W. Todebush & Co., which latter concern had nothing to do with the construction of the building above referred to, and of the existence of which it was not shown that plaintiff had any knowledge. Thereafter the plaintiff delivered to the Todebush corporation, at the building site, the materials contracted for. Subsequently plaintiff received from the Todebush corporation, in part payment of its debt, two notes. The due date of each was within a period of 60 days subsequent to the'last delivery. At the close of the case, both sides moved for the direction of a verdict, and plaintiff’s motion was granted.
[ 1 ] It is well settled that a contract of guaranty must be construed strictissimi juris, and may not be varied by parol. There are numerous authorities to the effect that the rule extends to a case where it is sought to show that the guaranty was intended for parties other than those named therein. In Grant v. Naylor, 4 Crunch, 224, 2 L. Ed. 603, the guaranty was addressed to John & Joseph Naylor. The guaranty in part read :
“By the recommendation of Mr. Travis, I take the-liberty to address you,” etc.
There was no such concern as John & Joseph Naylor, but there was a- firm of John & Jeremiah Naylor, of which Travis was agent, and to which firm the letter was delivered by the persons therein named as those to whom credit was to be given. Having extended credit to these persons, plaintiffs (John and Jeremiah) brought their action against the guarantor, but were not allowed to recover.
In McGovney v. State, 20 Ohio, 93, an executor’s bond, describing the testator as James L. Finley, was held not applicable to the estate of Joseph L. Finley. Barns v. Barrow, 61 N. Y. 39, 19 Am. Rep. 247, and numerous other cases in the courts of this, state, rest upon" the same principle. I think these cases are distinguishable from the pfies
• ■ _ For many years, it has been the practice of copartnerships to become incorporated under their firm name, and certainly no one would contend that the name “A. W. Todebush & Co.” necessarily implied a co-partnership rather than a corporation. It has been held in this district that the use of the word “Company” did not necessarily imply a corporation. In re American Cigar Lighter Co., 77 Misc. Rep. 643, 138 N. Y. Supp. 455. Since the adoption of section 6 of the General Corporation Law, the incorporation of a company bearing the name of the Todebush copartnership would have prevented the incorporation of a company under the name borne by the Todebush Company.
In Beakes v. Da Cunha, 126 N. Y. 293, 27 N: E. 251, the guaranty ran to George E. Beakes. There was an individual by the name of George E. Beakes, and also a partnership doing business under the same name, and the court held it competent for plaintiff to identify the actual creditor intended to be covered by the guaranty, by showing that credit was extended to the partnership, and not to the individual. Although no specific reference was made thereto in its opinion, the rule of law invoked by the court was evidently that which permits parol evidence to explain a written instrument in case of latent ambiguity. As Chief Justice Marshall said in Grant v. Naylor, supra, 4 Cranch, 235, 2 L. Ed. 603:
“It is not a latent ambiguity, for there are not two firms of the name of John & Joseph Naylor & Oo., to either of which this letter might have been delivered.”
In Drummond v. Prestman, 12 Wheat. 515, 6 L. Ed. 712, the guaranty was addressed to Charles Drummond, and covered “property of yours and your brothers” in the hands of the debtor. It was held that the guaranty could be availed of by a partnership composed of Charles Drummond and Richard Drummond, his brother; it being proved that credit was extended to the copartnership. In Michigan State Bank v. Peck, 28 Vt. 200, 65 Am. Dec. 234, a guaranty running to “C. C. Trobridge, President,” was enforced by the corporation of which he was president, and which had extended the credit.
Unquestionably, had the name of the corporation been A. W. Todebush & Co., the plaintiff might have shown that credit was actually extended to the corporation, and not to the partnership. Does the inclusion of the word "and” in the name used in the guaranty to describe. the creditor for whose benefit the guaranty was intended work such a change as necessarily to describe a concern other than the corporation? I think not. There was no variance in the sense of material difference, and I regard the two- names, although not strictly idem sonans, as practically the same, and that, under the rule above referred to, it was competent for plaintiff to show that credit was extended to the corporation and not to the copartnership.
[2] There is nothing in the point that the guaranty should be construed as limited to merchandise delivered before its date. Its form contemplates subsequent deliveries on the faith of the guaranty. The subsequent deliveries, also, were sufficient consideration for the guar
The judgment should be affirmed, with costs.
PAGE, J., concurs.