57 P. 622 | Ariz. | 1899
On the eighteenth day of April, 1890, one G. H. Wadleigh, in Tucson, Pima County, Arizona, by a written agreement duly executed, leased certain real and personal property to C. A. Stevens, a defendant and one of the appellants in this case, for the term of five years, at an agreed rental of three thousand dollars, to he paid in installments at the rate of fifty dollars per month during the continuance of the lease, and agreed and hound himself, his executors and assigns, to warrant and defend the said lessee in the peaceable and quiet possession of the said premises and property, and every part thereof, during the term of said lease, and in
The pleadings allege that Stevens and his sureties, Grosetta and Read, failed to pay the rent due upon the leased property from March 1, 1893, to April 1, 1894; that the appellee herein brought suit and recovered a judgment against the defendants, and each of. them, for the sum of six hundred and fifty dollars for rent upon the said property from the said March 1, 1893, to April 1, 1894. Among the agreed facts filed with the exhibits and other evidence in the ease is the agreement “that the lease and bond were executed, as alleged, and duly assigned to the plaintiff, as alleged; that the defendant Stevens paid the rent in full, as provided in the lease, to the first day of March, 1893; that afterwards, in this court, judgment was obtained against these defendants and in favor of this plaintiff for six 'hundred and fifty dollars, it being the said rent from the said March 1,1893, to April 1, 1894, and the defendants have paid no rent since April 1, 1894.” In his argument in support of the first assignment of error, the counsel for the appellants says that a former case between the same parties, involving this question, was before this court, and quotes from the decision rendered by this court in -that case, “We further hold that Stevens could not, under the terms of said lease, abandon said lands, and escape the liability for the rent,” upon the theory that “a judgment by a court of-competent jurisdiction upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties.” Morgan v. Mitchell, (Neb.), 72 N. W. 1055. We quote further from the decision of this court affirming the judgment of the district eourt of Pima County in the case referred to, remembering that the suit was between the same parties, and that identically the same issues were before the eourt in that case as in this ease, the action then having been brought for the rent from March 1, 1893, to April 1, 1894,
The second defense alleged that a certain understanding or agreement had been made between the lessor and sureties on the bond, and that thereafter, in púrsuanee of such agreement, the bond was executed in the words and terms set forth in the pleading; and the defendants, while they alleged that the bond as drawn and signed did not express their understanding, yet admitted that they did sign the bond in the words and terms given, knowing it to be in such words and terms, and admitted that they allowed it to remain in such words and terms, thus signed by them, until after the property was sold to an innocent purchaser, and the lease transferred, and the bond assigned for value to the plaintiff in this case, and they admitted that the construction given the bond by the court is the proper construction of the words used. The plaintiff in this ease is a third party to the contract of guaranty in the bond, and the record shows no right in any of the defendants to reform that contract as against her interests. 15 Am. & Eng. Ency. of Law, p. 679, note 3; 1 Story’s Equity Jurisprudence, pars. 108, 139, 165, 434; 2 Pomeroy’s Equity Jurisprudence, pars. 776 et seq.; Cottrell v. Bank, 53 Minn. 201, 54 N. W. 1111; Toll v. Davenport, 74 Mich. 386, 42 N. W. 63. It is conceded in the pleadings that under the existing terms of the bond Grosetta and Read are liable for the rent sued for. The prayer for a reformation of the bond therefore concedes that the facts alleged .constituted no existing defense against the plaintiff, and the demurrer was therefore properly sustained by the lower court.
Beyond the fact that as a matter of law the court properly overruled the demurrer to the two defenses, remains the further fact that, regardless of the authorities that support the court’s ruling in these instances, according to the general principles of law, “a right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction as a ground of recovery, cannot be disputed in
Street, C. J., and Sloan, J., concur.