The record-union., 1895-12-21

The court in the case of Davis VS..
Wells further said 1.-The recital of the
consideration paid by the guarantee to
| the guarantor shows complete con-
| tract, based upon the mutual assent or
| the parties; and if it is a contract at ALL
it is one for all the purposes expressed
in it. 1t is an entirety, and cannot be
separated into distinct parts. The
covenant is single and cannot be sub
| jected in it's Interpretation to two di-
verse rules"
| If it were necessary, in order to bind
| the guarantOrS, that it should appear
that they had notice of the fact that
Coolot had accepted them by his act of
executing the lease, such facts suff1-
GENTLY appear in the testimony or
| Bailey, who states that as early as Au-
gust, 1893, he got behind with his rent
and then notified plaintiffs that he
could not pay the rent, it was too
high. 1 could not raise it and they met
at my place one evening"" When asked,
WAS the rent paid up to the first Of
! September" he answered, ut was, but
not by myself" from which it is to be
presumed the plaintiff assisted him.
From other circumstances appearing
in the case it is plain that plaintlf
knew from the first that the lease, with
| them as the guarantors, had been &C
cepted. Besides it does not appear that
they were prejudiced by delay, If any
there was, in acquiring that knowledge.
The guaranty in this case appears
plainly to me to be an absolute guaran-
ty and by Section 2795, c. C. is binding
upon the guarantors without notice OF
acceptance.
Assuming the guaranty to be valid
and binding in It's origin plaintiff never
| theless claim that in equity they are
entitled to be discharged from its OBJ
| legations. This claim rs based upon the
refusal of Coolot to yield to the demand
of the guarantors that he should pro-
! ceed at law against Bailey to recover
all rents due and to terminate the lease.
In other words the demand that Coolot
do with Bailey what he lawfully might
do and what he might be expected to
have done in case no relations what
ever between him and them had ever
been established.
1t is not averred or proved that the
rents could have been collected OF
Bailey. On the contrary it is averred
that Bailey became inSolvent since the
notice of the 9th of January, and 1t is
proved that he was unable to pay the
rent falling due on the 1st of December
and the 1st of January. It is Impossible
| to see wherein CoOlot was in fault In
any such legal or equitable sense as
would impair his contract with the
guarantors, by refusing to sue bailey
"alI the rents that may be due by virtue
| of this lease if Bailey did not pay them
And in regard to refusing to take legal
steps to eject the tenant, can 1T be sald
that he violated the contract? 1t is
true the lease provided that he could
recover possession on non payment OF
rent. but he was not limited to THAI
right either as between himself and
Bailey nor as between himself and the
guarantors. Coolot did not covenant
that he would eject Bailey on non-pay-
ment of rent Bailey agreed to quit on
non-payment and the plaintiffs agreed
that he would keep his covenant.
And it may be asked how would the
guarantors be benefited if Bailey had
been eected. or he had without suit sur
rendered the premises? The object OF
the action is to procure the absolute ao-
rogation of the contract.
In Snow VS. Hogan OF Atlantic Rep,
339) where a notice and demand like
| thus was given to the landlord by one
who had guaranteed the payment OF
rent the court said: 1.-The defendants
notice TO the plaintiff that he would no
longer be liable did not release him
from liability unless he had the right to
insist on the plaintiff taking the action
he requested We do not think he had
the right The plaintiff was under no
obligation to bring suit against the
lessee either for the collection or the
rent or to eject him from the premises.
Neither of these was stipulated for IN
the guaranty the very purpose OF
which. so far as the plaintiff was con-
cerned was to avoid the necessity for
a. resort to her ordinary remedies
against the lessee in case OF Default
The lease contemplated the continued
occupancy Of the premises by the lessee:
not his election and the substitution or
the defendant in his place as tenant.
In National Eagle Bank vs. Hunt
03 Atlantic Rep. 116) the court cites
the case of Lloyds VS.. Harper 10 en-.
Div. 300 where the instance of an
irrevocable guaranty is given as where
a person enters into guaranty that
in consideration of the lessor granting
a lease to a third person he Will be an
swerable for the performance of the
covenants The moment the lease is
granted there is nothing more for the
lessor to do, and such guaranty as
that of necessity runs through the du-
ration of the lease. The lease was in
tended to be a guaranteed lease, and 1t
is impossible to say that the guarantor
could put an end to the guaranty at his
| pleasure, or that it could be put an end
to by his death contrary to the manifest
intention of the parties"
It is claimed that this guaranty,
! so far as it relates to the rents accru-
! ing subsequent to the 9th of January,
! 1884, the day of the notice by the
! plaintiffs that they would no longer be
| responsible, is a guaranty relating to
| future liabilities under successive
! transactions, and that accordingly such
| guaranty may be revoked in respect
! to such future transactions. The con-
/ tention is that the agreement to pay
rent in equal monthly sums on the 1st
! of each month brings the contract with
/ in the intent and meaning of Section
| 2S14 of the Civil Code as being future
| liability under successive transactions.
/ can find nothing in authority or
reason to give this view of what is
referred to in Section 2S14 the slightest
color of support. The lease of the prop
erty by Coolot to Bailey was clearly
and unquestionably a single and com
pleted transaction and its character
| as such is not affected by the fact that
the rent is payable in monthly Install
ments There is no qualification in the
terms of the guaranty in this case.
Il was a guaranty of Bailey's con-
| tract as an entirety, and was complete
| " executed on the Sth of October, 1872,
| when it was delivered to the guarantee.
Even if by any process of ratiocina
| tion the guaranty in this case could be
made to assume the aspect of future
! liabilities under successive tranSac-
| tions it would still be confronted with
the conditions of Section 2S15, which
| provides that a continuing guaranty
| iE respect to future transactions can
| not be revoked where there is con-
| tinuing consideration which is not re-
nounced Here the tenant remains in
| possession and continually enjoys the
successive considerations for the sue
| cessive monthly rents.
This is not a case for the application
| of the doctrine respecting the rights of
| surety and the duties of the creditor.
| A surety is exonerated only to the ex-
| tent that he is prejudiced by the neg
| lecf of a creditor TO do what he should