No. 639 | Wyo. | Feb 28, 1911
One Dan McCoy on September 12, 1908, leased a certain building and premises situated in Sheridan County and outside of any incorporated city or town from the co-partnership of Darnall & Craig for the period of five years commencing October 1, 1908, and to terminate October 1, 1913, with the privilege of renewing the lease for a further per
1. It is contended that the judgment is contrary to law and the evidence. Hecht’s liability if any arose by reason of the failure to pay the rent after July 24, 1909, and his written guaranty following the signatures of the • lessors and lessee is as follows, to-wit:
“For and in consideration of the leasing of the above described premises to the party of the second part, I, John Hecht, of Sheridan County, Wyoming, hereby guarantee the full, complete and faithful performance of the above lease with all its terms, conditions and covenants by the said party of the second part, his heirs and assigns.
“Witness: James H. BuRGEss. John Hecht."
Hecht’s defenses were two in number; first, A general denial, and second, That the building was rented for sa
Upon the facts there is practically no dispute. It is admitted that the lease was valid at the time of its execution, but it is contended that, as it would be unlawful to use the leased premises for saloon purposes after October 9, 1909, by reason of the act above referred to prohibiting a license therefor, McCoy upon vacating the premises was- relieved from further liability for payment of the rent. The license under which McCoy was doing business up to the time he vacated the premises in July, 1909', was in no way affected by the act of the legislature. He could lawfully carry on his business of retail liquor dealer under the provisions of the act during the remainder of the time covered by such license. He was not prevented by the act from continuing his occupancy of the building for saloon purposes to that time and it is not claimed that he was relieved from payment of the rent for that period as stipulated in the lease other than by such act.
The license expired on the 9th day of October, 1909, and by the terms of the lease the rental for that month became due and payable in advance on the first day of that month. The monthly rental as stipulated in the lease was for the entire month. It was payable in advance. The month was a unit. It was indivisible. The $100.00 rental for that month was for the use of the premises for- the entire month, and whether or not the lease was void or voidable after the expiration of the license, we are of the opinion that the
It is urged that the assignment was not sufficient to convey the estate in reversion and for that reason it is contended that the company as assignee could not maintain the action. It may be conceded that the assignment does not purport and that it is insufficient to convey the title in reversion. It was held by this court in Ramsey v. Johnson, 8 Wyo. 470, 58 P. 755" court="Wyo." date_filed="1899-11-04" href="https://app.midpage.ai/document/ramsey-v-johnson-6587546?utm_source=webapp" opinion_id="6587546">58 Pac. 755, 80 Am. St. Rep. 948, that an assignment of rent past due constituted the assignment of a chose in action and vested the assignee with every remedy and security available to the lessor as incident thereto although they are not specifically mentioned in the instrument of assignment. We think the same rule obtains when the rent is not due but is payable in the future and that the assignee could maintain its action for the rent when it became due and payable without the aid of reversion. (Tyler v. Heidorn, 46 Bar. 452, 18 Cyc. 286.) The agreement is to pay the monthly rent at stated times during the term of the lease. It is expressly stated in the lease that these payments are to be made to the lessors, their heirs or assigns. The privity of contract between the lessors and the lessee was transferred by assignment within the provisions of the lease to the Acme Coal Company. (Hunt v. Thompson, 2 Allen, 342; Van Renselaer v. Hayes, 19 N.Y. 68" court="NY" date_filed="1859-03-05" href="https://app.midpage.ai/document/van-rensselaer-v--hays-3577118?utm_source=webapp" opinion_id="3577118">19 N. Y. 68; Willard v. Tillman, 2 Hill, 274; Moffatt v. Smith, 4 N. Y. (4 Comst.) 126; Pfoff v. Golden, 126 Mass. 402" court="Mass." date_filed="1879-03-27" href="https://app.midpage.ai/document/pfaff-v-golden-6419571?utm_source=webapp" opinion_id="6419571">126 Mass. 402; Kendall v. Garland, 59 Mass. (5 Cush.) 74; 18 A. & E. Ency. L. 286.) After
The defendant, in .error sued in its corporate capacity. The answer was a general denial except as to matters therein specially admitted. It is at least doubtful whether-such denial put in issue the existence of the corporation. It introduced in evidence a certified copy of its certificate of incorporation under seal issued by the secretary of state, also a certified copy of its certificate or articles of incorporation filed as required by Sec. 3966, Comp. Stat. 1910, with the county clerk of the county wherein the business of the company was to be carried on. This was sufficient evidence prima facie of its organization, existence and authority to transact business, and to sue and be sued in its corporate capacity. The duplicate certificate required to be filed in the office of the county clerk was so filed on November 5, 1908, while that in the Secretary of State’s office was filed, on November 12, following. The assignment of the rent was in writing and dated November 5, 1908. It is apparent that the assignment was not effective at a time when the assignee named therein was not in existence and authorized to .do business, although it w.as in process of creation. The assignment would take effect from and after its delivery and not from its date. We think the same rule should apply that obtains in the -case of a conveyance of land to an intended corporation before its organization. In such cases the deed will take effect- upon its organization. This rule is well settled. (Sec. 2372, Vol. 3, Thomp. Corp.) By analogy of the case before us the assignment, purporting upon its face to have been made for a valuable consideration and having been recognized by payment of the rent to the 'assignee, will be presumed to have been delivered upon the
It is contended that Hecht was not primarily liable upon his guaranty for the payment of the rent and that for that reason the judgment is contrary to law. The guaranty was unconditional, and one of performance and not of collection. The consideration of the guaranty was the leasing of the premises to McCoy and one of the considerations for such lease as stated therein was the guaranty by Hecht of the full, complete and faithful performance of all its terms, conditions and covenants by McCoy. It amounted to a contract of suretyship. Hecht’s contract was to see that McCoy pays or performs his obligations. His promise to the lessors was that McCoy would perform his agreements under the lease to and with the lessors or their assigns. (Am. Bonding Co v. Pueblo Inv Co. supra; Nelson v. First Nat. Bank, 16 C.C.A. 425" court="8th Cir." date_filed="1895-08-19" href="https://app.midpage.ai/document/nelson-v-first-nat-bank-8853247?utm_source=webapp" opinion_id="8853247">16 C. C. A. 425, 435, 69 Fed. 798, 807; Williams v. Lyman, 31 C. C. A. 511, 514, 88 Fed. 237, 241.) There was no express 'requirement in the guarantee that the lessors or their assigns should first obtain judgment against McCoy, the lessee, as a condition precedent to Hecht, the guarantor, being called upon to pay the rent, and for that reason such a requirement can not be implied. . (Sec. 376, Underhill on Landlord and Tenant.) By the contract of guaranty Hecht assumed the performance of the covenants of the lease which the lessee- failed to perform. This liability became fixed upon the lessee’s failure to perform, and the assignee of the lease could at once proceed against him for the accrued rent which-McCoy had failed to pay. Sec. no, id.
The evidence supported the allegation. of the petition which as we have shown stated a cause of action against the defendants and clearly established the right of the company to the judgment rendered in its favor by the lower court.
No error appearing in. the record, the judgment will be affirmed. Affirmed.