68 W. Va. 220 | W. Va. | 1910
B. Shore sued the Clark Liquor Company, a corporation, and A. C. Lawrence in assumpsit, to recover rents due him under two separate and distinct leases, covering two different pieces of property, but alike in all other material respects. The declaration contains the common counts and a special count upon each of the leases. Having overruled a demurrer to the declaration and each count thereof, the court, trying the case in lieu of a jury, rendered a judgment for the sum of $1,200.00. On the writ of error, awarded to the defendants, the controlling question is the propriety of the ruling of the court upon the demurrer, it being contended, on the one hand, that Lawrence is a surety and can be sued jointly 'with the principal debtor, the Clark Liquor Company, and, on the other, that he is a guarantor and cannot be sued jointly with said company.
In the leases Shore is described as party of the first part, the Clark Liquor Company as party of the second .part and A. C. Lawrence as party of the third part. Shore leases, demises and lets the property to the Clark Liquor Company, in consideration of its agreement to pay, in each instance, the sum of $783.33, in monthly installments of $25.00. Another provision gives the lessor right of re-entry and makes the whole amount of rent fall due immediately, on default of the payment of any installment. This provision is introduced by the clause “It is agreed by the parties hereto.” Other provisions say the party of the first part demises and leases and the party
Though Lawrence is a party to the leases and the default clauses thereof may include him by the use of the terms “the parties hereto” it is nevertheless clear that his agreement to pay is collateral and conditional. It is not a primary undertaking, lie did not join in those portions of the leases which imposed a primary obligation to pay the rent. His agreement was to pay in case the Clark Liquor Company should fail to do so. Although contained in the same instrument as the agreement with the Clark Liquor Company, his contract with Shore is separate and distinct in character and altogether different in its terms. If the contract, properly construed, makes the whole amount due, on default in respect to an installment, so as make Lawrence liable to that extent, a question we do not decide, this clause must nevertheless be read in harmony with the terms of the one, disclosing the conditional and collateral character of his liability. These terms cannot be enlarged by mere inference or unnecessary implication. We are clearly of the opinion that he is a guarantor and not a surety. This view seems to conflict with the decision in McLott et al v. Savery et al, 11 Ia. 323, but the opinion in that case refers to no legal principle or precedent to sustain the decision. Other cases, relied upon by the defendant in error, are Allen, v. Hubert, 49 Pa. 259, and Scott v. Swain, 8 Atl. Rep. 24, but, in each of the contracts involved in those cases, the third party, binding himself to pay the rent in case of default, described himself as surety. In the first, he said “I hereby agree to become security for the faithful performance of the above agreement.” In the other he agreed “to become surety for the faithful performance of all or any of the conditions” to be kept, done and performed on, the part of the lessee and “to be liable therefor to the lessor as fully, to all intents and purposes”, as if he were the lessee.
For the reasons stated, the judgment will be reversed, the finding of the court set aside, the demurrer sustained, as to said two special counts, and the case remanded.
Reversed and Remanded.
