15 Or. 28 | Or. | 1887
The respondents commenced an action in the court below against the appellant to recover the sum of four hundred dollars, alleged to be due upon a written guaranty, executed by him to the respondents. It is stated in the complaint in substance, that on March 1, 1886, the respondents leased certain premises in Portland to Edward Martin for twenty-five and two thirds months “at two hundred and fifty dollars per month, monthly in advance”; and the appellant, in consideration of the lease, and of one dollar, guaranteed the- payment of two hundred dollars per month of said rent for the whole period, and that the rent for November and December, 1886, was due and unpaid, of which the appellant had due notice, and that demand had been made on him. The appellant, after having demurred to the complaint, and the demurrer had been overruled, interposed an answer denying that the alleged guaranty was given in consideration of the- lease, or for any consideration except one dollar; and set out in the answer a copy of the guaranty in full. The appellant also alleged a former recovery in favor of the respondents against the appellant, in an action brought by the former against the latter, upon the same guaranty for the payments claimed to have matured September and October, 1886, and obtained a judgment for one hundred and fifty dollars, which he claimed as a bar. The appellant alleged in the matter of defense, claimed to be a bar, that the said court adjudged that he should pay but the one hundred and fifty dollars on said guaranty for said months, for the reason that said Martin had paid rent for the first six months of said lease, amounting to one thousand four hundred
“San FRANCISCO, March 1, 1886.
“Tn consideration of one dollar, to me paid, receipt of which is hereby acknowledged, I -hereby guarantee t'o Messrs. A. I. lYciler & Go., of Portland, Oregon, the sum of two hundred dollars per month, payable in advance, in U. S. gold coin, for a period of twenty-five and two thirds months from above date, aggregating five thousand one hundred and thirty-three dollars (§5,133), being for rent of premises known as No. 134 First Street, Portland, Oregon, for the term beginning March 1,1886, and ending April 20, 1888. I). V. B. Henaeie.”
It was also alleged therein that by 'the terms of said lease to Martin, it was provided that on non-payment of i’ent for five days after due, the lease should be forfeited and tire lessors might repossess themselves of the premises.
The contract is severable. The respondents demurred to the answer, which demurrer the court sustained and entered the judgment appealed from. The main question in the case is the legal obligation imposed upon the appellant by the written instrument above set out. The appellant’s counsel claim, (1) That it is an entire agreement, and a judgment having been obtained thereon, is a bar to any further recovery upon it; and (2) that the appellant’s obligation under the agreement is collateral, and does not arise until an attempt has been made to recover the rent from Martin.
The contract. ■ The guaranty is severable for the payment to respondents of the sum of two hundred dollars per month, payable in advance, for a period of twenty-five and two thirds months for reui of premises. It is not shown upon the face of the guaranty for whom it was intended to answer, but it is evident from the terms of it,that it is an undertaking on behalf of the lessee of the premises referred to therein, and who is shown by the averment in