171 Mo. App. 604 | Mo. Ct. App. | 1913
This is an action against defendant as guarantor upon a lease. On March 27, 1909, the plaintiff leased certain premises in the city of St. Louis to one Charles Howell for a term of four years, at a rental of $315 per month, payable monthly in advance. The defendant became a guarantor for the lessee Howell, by the following writing, signed by him, upon said lease, viz.:
“In case said lessee fails to pay the rental specified in the foregoing lease, or said lease is forfeited for any reason, then I hereby guarantee the payment of rent to said lessor for the premises herein leased to said Charles Howell, for the term of three months from the date such rent is due and unpaid or the date said lease is forfeited.
“St. Louis, Mo., March 27, 1909.
“William S. Drozda. (Seal)”
The lessee, Howell, went into possession of the leased premises, and continued in possession until February 16, 1910. On January 10, 1910, Howell executed an assignment of all his right, title and interest, as lessee, in and to the lease, to one Sam Cross and one Leonhard Offermann. On February 12, 1910, the defendant made a written request upon plaintiff, the lessor, to consent to said assignment by Howell to Cross and Offermann, for the remainder of the term of the lease; and on the same date the plaintiff executed a written consent thereto, stipulating however as one of the conditions therein, ‘that the said W. S. Drozda, as guarantor and surety remains fully hound by all the
“I, ~W. S. Drozda, surety and guarantor for Charles Howell, lessee, in and of his obligation under the aforesaid and hereto attached lease, do hereby accept the terms and conditions of the aforegoing consent to the assignment to Sam Gross and Leonhard Offermann by Charles Howell, lessee, of his interest in said lease, and in consideration of the sum of one dollar to me paid by Adrain U. Fiester, do also hereby consent to the aforegoing assignment of said lease and do agree and acknowledge that I am and do remain bound as fully by my guarantee to said Adrain U. Fiester, and all the conditions of said consent in all respects as if said assignment had not been made and said consent had not been granted.
W. S. Deozda. (Seal)”
St. Louis, Mo., Feb. 16, 1910.
It is averred by the petition that the new lessees, Gross and Offermann, failed to pay the rent.for the premises for the months of June, July and August, 1910, aggregating $945, and that the defendant also refused to pay the same; and judgment is prayed against the defendant for said rental for these three months.
The answer is a general denial, coupled with the averment that the original lessee, Howell, and the new lessees, Gross and Offermann, failed and neglected to pay the rent of said premises for the months of February, March, April and May, 1910, amounting to $1260; that the defendant, in pursuance of his undertaking and on default of said lessees, paid plaintiff the said sum of $1260; whereby all of defendant’s obligation, npon his undertaking in the premises, was fully discharged. The reply was a general denial of the new matter in the answer.
On redirect examination Wissmann testified that he first went to Howell for these rents; that Howell at first wanted to make partial payments on the rent, which the witness would not accept; that Howell thereupon said that he would make payments to defendant Drozda every week or every two weeks, and that the latter would pay the rent in full. The witness stated that he then went to defendant for the rent. This witness also identified a check of defendant for $40, of date June 13, 1910, being for a portion of the rent for the month of May, 1910.
On account of the adverse rulings of the court respecting the admission of defendant’s evidence, the defendant offered no further testimony. Thereupon the court peremptorily instructed the jury to return a verdict in favor of plaintiff for $945, less the $40 paid by defendant upon the rent for May, 1910, leaving a balance of $905, with interest thereon from the date of the commencement of the suit. In obedience to said instruction, the jury thereupon returned a verdict for $935.50. Judgment was rendered accordingly, and the defendant appealed.
The court excluded the receipts and checks offered by defendant to show payments of rent by him prior to February 16, 1910, and defendant’s testimony concerning the same, upon the theory that the defend- ■ ant had on the last mentioned date entered into a new
The undertaking of defendant is one of guaranty, rather than of suretyship (Rieger v. Royal Brewing Company, 106 Mo. App. 513, 80 S. W. 969; Perry v. Barrett, 18 Mo. App. 140; Virden v. Ellsworth, 15 Ind. 144; 20 Cyc. 1400; 12 Am. & Eng. Ency. (2 Ed.), 1130); but the distinction is not important here. The terms of the contract of guaranty are to be strictly construed, and the liability of the guarantor cannot be extended by implication, but the contract must be construed so as to give effect to the intention of the parties. [Shine v. Central Savings Bank, 70 Mo. 524; Mitchell v. Railton, 45 Mo. App. 273; Kansas City v. Youmans, 213 Mo. 151, 165, 112 S. W. 225.] The rule does not preclude the courts, when construing a contract of guaranty, from applying the rules and tests applied to other contracts, in undertaking to determine the real meaning of the language used. [Kansas City v. Youmans, supra.]
By the terms of -the original undertaking of defendant, he guaranteed the payment of the rent for the premises for a term of three months from the date such rent became due and remained unpaid, or the date of the forfeiture of the lease. The record shows that defendant made a written request upon plaintiff that the latter consent to the assignment by Howell to Cross and Offermann. Plaintiff did consent to this assignment, upon condition that the defendant remain fully bound'by all obligations imposed on him in said
Respondent says that under the evidence adduced by plaintiff, which was uncontradicted, plaintiff was entitled to have the jury peremptorily instructed to return a verdict in his favor. This would doubtless be true u]ion the evidence actually admitted. However, defendant’s complaint is that he was not permitted to show that he had, as guarantor, made certain payments of rentals in discharge, partial or total, of his obligation.
It is also contended by respondent that the renewal of defendant’s obligation, on February 16, 1910, negatived all claim that, by his previous payments of rent for Howell, he had extinguished his- obligation as guarantor. This, however, does not necessarily follow. The agreement to remain bound by the original obligation may appear to have been a useless thing, if in fact defendant had discharged himself from all liability thereon; nevertheless, there being no evidence that there was, at the time, any consideration or discussion of the question as to whether defendant’s original liability had been discharged, in whole or in part, and the language of the agreement itself being such as to imply no new or aditional obligation, we do not feel at liberty to extend the obligation of defendant beyond the clear import of the language used.
Respondent also urges that by the payment of a portion of the May rent for the new lessees, defendant recognized his liability as guarantor for these lessees, as upon a new contract of guaranty. This payment, however, by defendant of a-portion of. the May rent is not a controlling factor in determining that question. It does not appear whether defendant made this payment in discharge of what he conceived to be his obligation remaining upon his original undertaking or in recognition of his liability upon the instrument of February 16, 1910, as a new and separate guaranty.
It is true that plaintiff’s testimony went to show that the payments made by defendant for rent prior to the assignment of the lease, were really made by Howell through defendant as his agent, and not by defendant on his guaranty. In our opinion, however, the learned trial judge erred in not permitting the defendant to testify concerning these payments. With these receipts and checks in evidence, and defendant’s testimony heard concerning these payments, it would then be a question for the jury as to whether the payments were made as agent for the lessee, or by the defendant as guarantor in discharge of his obligation as such.
It is true that the answer avers that the defendant, as guarantor, paid the rent for the months of February, March, April and May, 1910, while the offers of proof made by defendant show that the payments sought to be proved were for the months of December, January and February, and a portion of the May rent. Defendant, however, during the progress of the trial asked leave to amend his answer, which request was not passed upon by the court, evidently because of the view taken by the court that defendant was not entitled to show any payments made by him as guarantor prior to February 16, 1910.
The judgment of the circuit court is reversed and the cause remanded.