Rieger v. Royal Brewing Co.

106 Mo. App. 513 | Mo. Ct. App. | 1904

ELLISON, J.

This action is based on a written guaranty of payment of rent on a building owned by plaintiff which he rented to one John R. Tripp. The plaintiff recovered in thé trial court.

It appears that plaintiff leased to Tripp for a saloon, certain property in Kansas City for a period of more than two years, at one hundred dollars per month. And that defendant gave the following guaranty, written on the lease, as to payment of rent, viz.: ‘ ‘ This lease is guaranteed four months in advance by the Royal Brewing Company, in case said Tripp fails to make payments stated.” Rent was paid for tile month of October by Tripp in person, and for November and December by defendant as agent for Tripp (so plaintiff claims) and the receipts were made out in his name. The rent for January was not paid and the premises abandoned and surrendered to plaintiff at the end of that month and remained vacant for about eight months. Plaintiff demanded four months’ rent of defendant under the terms of the guaranty, which was refused. This suit followed and plaintiff recovered for four months.

The defendant contends that the guaranty is ambiguous and that, explained by oral evidence, it meant that defendant only guaranteed the payment of the first four months’ rent on the lease, and that as three were paid, only one remained due. The court refused to hear such evidence and construed the guaranty as not needing explanation and that it meant to guarantee four months’ rent after Tripp should cease to. pay as stipulated in the lease. This we believe, was the proper view to take of the writing and our ruling is that no error was committed in that respect.

When Tripp made his first default in payment, defendant’s liability began for the four succeeding months. As above stated, three months were paid; but as two of these were paid by the hand of defendant, though accepted and receipted for as from Tripp, it made a question whether they were payments by Tripp through defendant as his agent, or whether they were defaulted by Tripp and were paid by defendant on its guaranty. That phase of the case was submitted in an instruction given at defendant’s request and the jury found that the payments were Tripp’s and not made on the guarantyi

Considerable is said by defendant on the subject of a surrender of the premises and authorities are cited on that head. But there is no room in the case for such question. When the character of the guaranty, connected with the lease, is considered, it will be seen that clearly the object was to secure to plaintiff four months’ rent after Tripp should fail. We find nothing in the case, the guaranty and lease considered, to justify the contention that plaintiff surrendered, or intended to surrender his lease, in the sense of- annulling the obligation for the payment of rent. Plaintiff received the key to the premises for the purpose, stated to defendant, of protecting the property and not to in anywise release the guaranty. It is true that there was some expression of willingness to accept defendant as assignee of the lease if it would take it for the full term. But that was not carried out.

Upon an examination of the whole case we find ho error justifying us in disturbing the result reached. Indeed, the judgment is so manifestly for the right party that it ought not to be disturbed, and it is therefore affirmed.

All concur.