Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.
The plaintiff, Garfield Trust Company (hereinafter referred to as "Garfield"), appeals from a judgment of dismissal at the conclusion of the plaintiff's case in favor of the defendants-respondents.
Garfield instituted an action against the defendants, who were stockholders and former stockholders of the Paramount Finishing Co., Inc. (hereinafter referred to as "Paramount"), to enforce a written "continuing guaranty" executed and delivered by them to Garfield, guaranteeing "direct or contingent" obligations then existing or thereafter arising, owing by Paramount, therein called "the Borrower."
Under the first count of the complaint, Garfield sought recovery from all the defendants of three unpaid notes executed and delivered by Paramount to Roco-Tex Chemicals, Inc. (hereinafter referred to as "Roco-Tex"), two of which were in the respective amounts of $1,036.13 and $1,036.22, in payment of merchandise sold by Roco-Tex to Paramount, and the other note in the amount of $1,036.22, dated March 5, 1951, being a renewal of a prior note; all three notes having been discounted by Roco-Tex with Garfield and Roco-Tex having received the proceeds thereof.
Under the second count, Garfield sought recovery from the defendants Joseph Denequolo, Lucia Denequolo, Joseph Pascale and Briggie Pascale, under their continuing guaranty, of three unpaid promissory notes of Paramount to Roco-Tex aggregating the sum of $1,839.35, all three notes having been successfully negotiated for discount by Roco-Tex with Garfield and Roco-Tex having received the proceeds thereof.
Under the third count of the complaint, Garfield sought the recovery from the defendants Joseph Denequolo, Lucia Denequolo, Charles Pascale and Julius DiRocco, of an open account consisting of accounts receivable due from Paramount in the amount of $994.80, which accounts were assigned by Roco-Tex to Garfield.
On February 14, 1951 Teichmann, Rento and Vigorito,
executed an agreement with defendants, Joseph Denequolo and Charles Pascale, providing for the sale of their shares of stock in Paramount and for retirement from the company. Under the terms of the agreement Denequolo and Pascale assumed and agreed to pay certain obligations of the sellers of the stock to various named creditors, including Garfield, undertaking to indemnify the sellers from liability in the event of breach.
On the same day the sellers, Teichmann, Rento and Vigorito, delivered a communication to Garfield, terminating the agreement of guaranty dated December 28, 1950. Garfield acknowledged receipt thereof on February 14, 1951, agreeing that from that day the guaranty was no longer operative so far as Teichmann, Rento and Vigorito were concerned.
In connection with an application of Paramount to Garfield for an extension of credit, the defendants Denequolo and Pascale, the purchasers of the stock, together with their wives, executed written continuing guaranties identical in form with that previously made by defendants Teichmann, Rento and Vigorito, to Garfield.
On February 19, 1951 Paramount, then controlled by its new stockholders, executed three notes to Roco-Tex in the respective amounts of $613.11, $613.12 and $613.12, which notes were discounted by Garfield for Roco-Tex.
Between February 19, 1951 and March 6, 1951 Paramount made purchases from Roco-Tex aggregating the sum of $994.80, which account was assigned by Roco-Tex to Garfield.
The defendants filed answers denying liability for the obligations sued upon under the terms of the aforementioned written guaranties and asserting other defenses. Cross-claims were filed by the defendants Helena Teichmann, as executrix of the estate of her husband, Curt Teichmann, since deceased, John Rento and Michael Vigorito, against defendants, ...