guaranty from Schmerling. It should also be noted that Section 185 of the Restatement of Contracts provides that a promise to sign a written contract of guaranty must be in writing to satisfy the Statute of Frauds.
With respect to the telegram of August 22, 1956, Watson requested Schmerling to guarantee payment of Lehigh invoices so that he could obtain in loan from the Nevada bank in the amount of $ 16,100. Schmerling, in his capacity as an officer of Lloyds, forwarded the following telegram:
'Will guarantee payment of 16,000 Dollars covering invoices of Watson Millwork Company to Lehigh Valley Wood Works Corporation Allentown.'
Watson did not advise Schmerling at that time which invoices he had assigned to the Nevada bank. Schmerling learned which invoices had been assigned when he received a copy of a letter from Watson addressed to Leonard Wilkinson of Lehigh on August 27, 1956, five days after Schmerling had sent the telegram. Undoubtedly, Lloyds did guarantee payment of $ 16,000. However, this obligation, whether or not legally binding, was satisfied upon the bank's receipt of the two certified checks.
Watson contends that Schmerling's alleged oral guaranty of May 14, 1956 was not within the Pennsylvania Statute of Frauds (33 P.S. 3). He cites several cases where it has been held that the Statute of Frauds did not apply where the main purpose or object of one orally promising to pay another's debt was not to answer for the debtor, but to subserve some pecuniary or business purpose of the promisor, involving benefit to himself or damage to the other contracting party. Because Lloyds allegedly received a 1% Commission from Watson, plaintiff argues that the guaranty served a pecuniary interest of Lloyds. These citations are clearly inapposite since Lloyds never received payment of the extra 1%.
Watson further contends that the telegram and the two checks taken together, can be considered as sufficient memoranda to satisfy the Statute of Frauds as to $ 16,000. This Court cannot agree. The telegram and the letter accompanying the two checks all referred to a guaranty of a limited amount, namely, $ 16,000. By seeing to it that Watson received more than this amount from Lehigh, no other conclusion can be reached but that this guaranty was made good. Moreover, even assuming that Lloyds breached its guaranty, there had been no showing that Lloyds received any consideration for the guaranty in the first instance. In effect the telegram said: 'We will see to it that Lehigh pays Watson $ 16,000.00; if it does not, we will.' Subsequently, Lehigh paid Watson over $ 17,000 thereby relieving Lloyds from any liability.
Still another reason would prevent Watson from recovering from Lloyds, assuming the truth of all plaintiff's allegations. Evidence was received which clearly showed that Watson agreed with Lehigh, without the knowledge of Lloyds, to extend the time of payment. 17 P.L.E., Guaranty, Sec. 8, provides in pertinent part:
'Similarly, in the absence of a provision in the contract of guaranty to the effect that the time for payment or performance may be extended without releasing the guarantor from liability, it is the general rule that an agreement between the guarantee and the principal for an extension of time for payment or performance by the principal releases the guarantor from the obligation of his guaranty, unless he consents to such extension, * * *'
Finally, it has been held that whenever a plaintiff seeks to make one liable for the debt of another, the case must be clearly proved and every ambiguity in the evidence weighed in favor of the defendant. Stouffer v. Jackson, 1910, 42 Pa.Super. 450. It is the opinion of this Court that plaintiff has failed to establish his allegations by a fair preponderance of the evidence.