National City Bank of New York v. Borowicz, A--353

• Decision Date: 13 June 1956
• Docket Number: No. A--353,A--353
• Parties: The NATIONAL CITY BANK OF NEW YORK, a corporation, Plaintiff-Respondent, v. Sigmund BOROWICZ, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 414

40 N.J.Super. 414

123 A.2d 382

The NATIONAL CITY BANK OF NEW YORK, a corporation, Plaintiff-Respondent, v. Sigmund BOROWICZ, Defendant-Appellant.

No. A--353.

Superior Court of New Jersey.

Appellate Division.

Argued June 11, 1956.

Decided June 13, 1956.

Benjamin H. Priest, Elizabeth, for appellant.

Irving J. Rosenberg, Newark, for respondent.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff bank offered to lend one Joseph Martinez $2,170 on his promissory note if he would obtain the endorsement of a guarantee of payment thereon to the extent of 85% Of the indebtedness. Such note, with payment guaranteed by defendant on the reverse side thereof, was delivered to plaintiff on Monday, November 16, 1953, and the loan was then made.

The bank sued defendant for the balance due on the note. He disclaimed liability on the ground that he signed the guarantee on Sunday, November 15, 1953, so that the guarantee was void Ab initio. Plaintiff does not deny defendant's Sunday signing. Each party moved for summary judgment. The trial court denied defendant's motion and granted plaintiff's, first as to liability only, and then for damages in the sum of $1,155.11. Defendant appeals.

It is unnecessary to consider defendant's arguments that the guarantee was an independent collateral undertaking, and that a contract of guarantee must be strictly construed. The terms of the guarantee are entirely clear and defendant does not dispute their meaning. Nor need we deal with his contention that the provisions of the Negotiable Instruments Act, R.S. 7:1--1 et seq., N.J.S.A., are not applicable to the guarantee in question. We need only consider whether a guarantee of a promissory note is enforceable by the payee against the guarantor where the guarantee was signed on a Sunday but the note was delivered and the consideration therefor advanced on the following day, the date of the note.

A contract made on Sunday will, of course, not be enforced. N.J.S. 2A:171--1, N.J.S.A.; Greene v. Birkmeyer, 8 N.J.Super. 217, 219, 73 A.2d 728 (App.Div.1950). Under the rule set forth in Burr v. Nivison, 74 N.J.Eq. 320, 69 A. 1094 (Ch.1908), affirmed 75 N.J.Eq. 241, 244, 72 A. 72 (E. & A. 1909), a contract signed on a Sunday is not invalid for that reason if delivered on a secular day to the party seekin to enforce it. Cf. R.S. 7:2--16, N.J.S.A. and Polhemus v. Prudential Realty Corp., 74 N.J.L. 570, 67 A. 303 (E. & A. 1907) as to promissory notes. Diamond Glass Co. v. a secular day to the party seeking to enforce reported), is closest in point factually and held that it was no defense to an action on a guarantee that it was dated on a Sunday, if delivered to plaintiff on a secular day. The...