171 So. 2d 563 | Fla. Dist. Ct. App. | 1965
Lead Opinion
Affirmed on the authority of Fegley v. Jennings, 44 Fla. 203, 32 So. 873; A. & T. Motors, Inc. v. Roemelmeyer, Fla.App. 1963, 158 So.2d 567. See also: Wagner v. Rice, Fla. 1957, 97 So.2d 267; Calhoun v. Corbisello, Fla. 1958, 100 So.2d 171; Krohne v. Orlando Farming Corp., Fla.App. 1958, 102 So.2d 399; Ross v. Florida Sun Life Insurance Co., Fla.App.1960, 124 So.2d 892.
Dissenting Opinion
(dissenting).
This was an action brought under a written lease by a lessor to recover certain defaulted installments of rent aggregating $3,-466.55 and for reimbursement for certain taxes paid in the amount of $831.21. The action was against the lessee and a guarantor of the lessee. Summary judgment was entered against the lessee, and after trial, judgment was entered against the guarantor. This appeal is by the defendant guarantor, from the latter judgment.
I respectfully dissent from the majority affirmance, and would reverse the judgment, because the lessor reserved (and by admission has retained) $10,000 which the lease required the lessee to deposit “as security for the faithful performance of the Lessee’s covenants” under the lease. Resort to the available security fund, in my opinion, is a prerequisite to collection from the guarantor. See 50 Am.Jur. Suretyship, § 116.
