| Mass. | Mar 31, 1904
The short form of guaranty written on the lease follows the language of a similar contract construed in Sartwell y. Humphrey, 136 Mass. 396" court="Mass." date_filed="1884-01-31" href="https://app.midpage.ai/document/sartwell-v-humphrey-6421204?utm_source=webapp" opinion_id="6421204">136 Mass. 396, and the nature of the undertaking of the defendants is clearly and precisely expressed.
Being an instrument under seal, a consideration is presumed and is sufficient to support it as a binding agreement whether executed concurrently with or at a time subsequent to the signing of the lease. Hayes v. Kyle, 8 Allen, 300, 301.
By its stipulations the punctual performance on the part of the lessee of the covenants of the lease was guaranteed.
It is not contended that the executors, or their testatrix in her lifetime, designedly allowed the rent to become in arrears in order to favor the lessee, the principal debtor, to the injury of the guarantor, and a failure by him to pay the rent reserved at the time when it became due and payable would be a breach of his covenant, and a cause of action would at once accrue to the lessor against the defendant.
No limitation of the nature now suggested by him is expressed in the contract, and while he might have made his promise- to pay contingent on the failure of his principal to pay any judgment the lessor might recover if he failed to keep this covenant, it is a sufficient answer to say that he did not do so, but was content to make his liability unconditional and absolute.
If there was no express requirement in the contract of guaranty that the lessor should first obtain judgment for the rent against the lessee as a condition precedent to his being called upon to make payment, none is to be read into it by implication, and it must be construed like any written agreement, where the parties have seen fit clearly to state the extent of an obligation by which they are severally to be bound.
Under its terms it became the duty of the defendant to ascer
No discussion of the joinder of both as parties defendant in this case is called for, as the plaintiffs at the trial, under a ruling sufficiently favorable to the defendant and made at his request, were compelled to elect between them, and made their election to pursue him alone.
I In the next question presented by the defendant’s exceptions \ he contends that the evidence offered by him that the board of | health had condemned a portion of the premises as dangerous j and unfit for habitation was wrongly excluded, because such I condemnation amounted to an eviction by the lessor, which j would either suspend payment of the rent, or justify their abandonment by the lessee.
Independently of the facts that the tenant took the leasehold estate, whether it included the brick building alone or in addition the wooden building and ell, as he found it, that he agreed to keep the premises in repair, that no substantial change of condition had taken place during his tenancy, and that he left solely because his business had declined and trade had followed his former customers to other localities, it is not shown that the lessor or her representatives had interfered with the tenant’s estate in such a manner as to exclude him from, or permanently deprive him of, its full use and enjoyment as it existed at the date of the demise. Skally v. Shute, 132 Mass. 367" court="Mass." date_filed="1882-03-03" href="https://app.midpage.ai/document/skally-v-shuts-6420561?utm_source=webapp" opinion_id="6420561">132 Mass. 367. Smith v. McEnany, 170 Mass. 26" court="Mass." date_filed="1897-11-27" href="https://app.midpage.ai/document/smith-v-mcenany-6426180?utm_source=webapp" opinion_id="6426180">170 Mass. 26. If upon conflicting testimony the jury could have found that the wooden building and ell remained in the possession of the lessor, although she permitted them to fall into a state of decay to the personal annoyance of the lessee, this does not necessarily prove such an interference with his occupancy of the demised premises as to amount to either an eviction or a breach of the covenant for quiet enjoyment, at least where the tenant still continues in possession and use of them. International Trust Co. v. Schumann, 158 Mass. 287" court="Mass." date_filed="1893-03-02" href="https://app.midpage.ai/document/international-trust-co-v-schumann-6424482?utm_source=webapp" opinion_id="6424482">158 Mass. 287, 291. Besides, his offer of proof contained no attempt to show any fraud or concealment by the lessor of the condition of the estate at the date of the lease, and the tenant took the premises as lie found
But by the provisions of the lease the landlord entered into no contract to make any repairs that might be needed, or to remedy defects that might arise during the tenancy of the lessee, and unless such an agreement is found, the decay and dilapidation of the buildings would not be a defence to an action for the rent as it accrued. Foster v. Peyser, 9 Cush. 242, 246. Welles v. Castles, 3 Gray, 323, 326. Szathmary v. Adams, 166 Mass. 145" court="Mass." date_filed="1896-05-21" href="https://app.midpage.ai/document/szathmary-v-adams-6425632?utm_source=webapp" opinion_id="6425632">166 Mass. 145.
Such a defence is equally ineffectual when urged by a guarantor, who, for the purpose of performing this covenant, stands in place of the tenant, and the collateral undertaking is as broad as the terms of the contract guaranteed. Clark v. Gordon, 121 Mass. 330" court="Mass." date_filed="1876-11-21" href="https://app.midpage.ai/document/clark-v-gordon-6418720?utm_source=webapp" opinion_id="6418720">121 Mass. 330. Warren v. Lyons, 152 Mass. 310" court="Mass." date_filed="1890-10-24" href="https://app.midpage.ai/document/warren-v-lyons-6423583?utm_source=webapp" opinion_id="6423583">152 Mass. 310.
This discussion of the principles of law involved in the case covers all that is necessary to be said, as the rulings requested and refused stated in different ways the legal propositions already considered.
No error of law appears, and as the plaintiff’s exceptions were abandoned at the argument, if the. defendant was held liable for the rent, we treat them as waived; and the order must be
Exceptions overruled.