183 P. 966 | Cal. Ct. App. | 1919
The plaintiff, Dodge, executed a lease of a rooming-house property to one Plevros. The lessee was not privileged to assign without lessor's written consent. An agreement was made whereby plaintiff consented to an assignment negotiated by Plevros to the defendants, Chas. D. Chapman and Anna E. Chapman, husband and wife, on condition that the Chapmans furnish a bond in the penal sum of three thousand dollars for their faithful performance of the conditions of the lease. The Chapmans furnished such bond, with themselves as principals, and the defendants, *613 J. W. Chapman and W. L. Altenburg, as sureties. The assignment was made by the original lessee, and accepted by the assignees; and the lessor, plaintiff here, indorsed on the lease his written consent to the assignment. The lease was for a term of several years, and the stipulated rent for the period covered by this action was $485.75 per month, payable in advance. The rent payments were kept up for a considerable time, but ultimately became in arrears in the sum of $1,863, whereupon the lessor, Dodge, brought this action against the Chapmans, assignees under the lease, and J. W. Chapman and W. L. Altenberg, sureties on the bond. The assignees, and principals on the bond, Chas. D. Chapman and Anna E. Chapman, defaulted, but the two sureties answered, setting up against their liability as guarantors, among other defenses, that the plaintiff, lessor, had entered into an agreement with their principals subsequent to the execution of the bond, whereby the obligation for which they were guarantors had been changed, and that they were thereby exonerated from liability thereon. The trial court found against them as to the other defenses, but made a finding in their favor as to exoneration by reason of unauthorized modification of the lease contract. Judgment was for the plaintiff against the defaulting principals, but against him as to the sureties on the bond. From this latter part of the judgment plaintiff appeals.
As the findings were against the respondents on the other grounds of their defense, and they are not appealing, the only question to be considered here is whether the evidence justified the findings of the trial court that they were exonerated from liability as guarantors by a subsequent alteration of the lease contract.
The alleged alteration or modification of the obligations under the lease rests on the following undisputed facts: After the assignees under the lease had been in possession for a few months, they complained to the plaintiff, their lessor, that they were, during the dull summer months, unable to pay the full stipulated monthly rental of $485.75, and the lessor orally consented to remit from the amount the sum of $50 per month, for the months of June, July, and August of that year, and to accept $435.75 for each of these months in full satisfaction of the rentals for that period. This arrangement was made on the 2d of June, 1914, and thereupon the *614 assignees of the lease gave him, their lessor, a check for $435.75 for the month of June, and he in turn gave them a receipt for the month's rent, designating therein the full monthly rental of $485.75. This procedure was repeated for the months of July and August, and was continued for two or three months thereafter, when the assignees of the lease defaulted in, and entirely discontinued, the payment of any rent at all, resulting in the arrears of rentals which form the basis of this action. There was no consideration to plaintiff for the reduction of rent granted, and the agreement to make the reduction was not in writing. [1] The trial court found that this agreement was an alteration of the lease contract, and that it was "partly oral and partly written"; but to reach this conclusion the court erroneously, we think, construed the checks given for the reduced amount and the receipts given therefor in full payment, as being memoranda or writings constituting part of such an agreement. These instruments may be evidence tending to show that the plaintiff received a less amount than the lease called for in full payment of the monthly rental, but they do not evidence any contract to reduce the rent. The receipts, which were the only writings signed by the plaintiff relating to this matter, on their face, in fact, indicate that the full amount of the rents was collected. The checks drawn by the assignees of the lease merely constitute an instrument of payment of a certain sum of money, and have no more evidentiary force than would bank bills received in payment under the same circumstances. The agreement, then, to receive for a limited time a reduced monthly rental was not in writing, and was supported by no consideration. As an agreement in modification of the lease, it therefore was without force or effect. There was no period of time under the lease, when any installment of rent was due and unpaid, that the terms of the lease could not have been enforced for the full amount. [2] In legal effect, then, we have merely this condition: For a period of several months the lessor accepted, without any binding agreement or obligation to do so, a less amount than the lease called for in full satisfaction of the rentals for that period. Conceding that the obligation to pay the stipulated monthly rental was satisfied by these payments, yet the contract was not altered any more than it would have been if the full amount had been paid. It was no concern of the sureties *615 how these payments were made. The landlord could have taken his pay in "chips and whetstones" if he saw fit. He could have given back to his tenants the whole amount of the rents received, had he wanted to, without changing the obligations of the lease.
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Such seems to have been the effect of the ruling of the supreme court in Sinnige v. Oswald,
We find that most of the authorities presented by respondents are not applicable here, for the reason that they deal with a state of facts which show that valid and enforceable alterations in the obligation under consideration had been made. Perhaps the strongest case presented by respondents is that of Driscoll v. Winters,
[3] There is no merit in respondents' argument that the reduction in the rent in this case extended the liability of the sureties. The three thousand dollars named in the bond is the amount of the penalty of the bond, and the liability of the sureties extended to any unpaid rents during the term of the lease, not exceeding the aggregate amount of three thousand dollars. The acceptance of a reduced rent, when taken in full satisfaction of the amount due, in no way changed the liability on the bond. We think the trial court misapprehended the effect, as evidence of a written agreement, *618 of the checks and receipts exchanged between the parties in the reduced payment of the monthly rentals.
Appellant asks for an order directing judgment in his favor against the sureties on his bond. This we cannot do under the findings.
The judgment is reversed and the case remanded for a new trial as to the defendants J. W. Chapman and W. L. Altenburg.
Finlayson, P. J., and Thomas, J., concurred.