Supplee v. Herrman

Opinion by Rice, P. J., In entering judgment for the defendant non obstante verdicto the learned judge of the court below correctly stated the law, which we think is applicable to the case, as follows: “ A surety is undoubtedly primarily liable on his covenant, and may be proceeded against without recourse to him for whom he has engaged to answer (Haynes v. Synnott, 160 Pa. 180; Allen v. Hubert, 49 Pa. 259; Geddis v. Hawk, 1 Watts, 280; McCarthy v. Gordon, 4 Wharton, 321) ; and this also may duly follow even though the principal be dead.” The contract entered into by the defendant was one of suretyship, not of guaranty: Allen v. Hubert, 49 Pa. 259; Coe v. Vodges, 71 Pa. 383; Korn v. Hohl, 80 Pa. 333; Scott v. Swain, 19 W. N. C. 547; s. c. 6 Cent. Repr. 250; Frechie v. Drinkhouse, 4 W. N. C. 298. It is not and cannot be successfully claimed, that the death of a lessee for a term of years ipso facto discharges from liability for after accruing rent one who has bound himself absolutely for the payment of the rent for the entire term; and as a surety may be proceeded against without first having recourse to the principal or his estate, it would seem clear, that neither the liability of the surety nor the right of action against him, is suspended [49] during the period between the death of the lessee and the appointment of an administrator. It has been suggested, that if by agreement with the landlord a third person is admitted into the possession of the premises after the lessee’s death and before the appointment of an administrator, and the landlord accepts part of the accruing rent from him, this is to be regarded as analogous to an eviction, which relieves the surety from liability during the occupancy of such third person. Be that as it may, the mere fact that the widow of the lessee intruded into the possession, or continued to occupy the premises, after his death, would not have that effect. In other words, the landlord would not, in such a case, be put to the alternative of ejecting her or of being visited with the consequences which follow the eviction of a tenant. This is the case presented in the reserved point. The bare fact that she was in possession of the premises after the death of her husband and during the time when the rent sued for accrued is admitted, but it is not admitted, nor has the fact been found by the jury, that she occupied the premises by agreement with the landlord. Whether or not there was evidence from which the jury could have found the fact is a question not before us. Therefore, we need not consider the legal effect upon the surety’s liability which such a finding would have. The law upon the subject of reservations of questions of law was thus stated by our Brother Smith in an opinion in which many of the cases are cited and reviewed. “ The facts contained in a reserved question may be found by the jury specially, or may be agreed upon b}r the parties, or may be stated by the trial judge; in the latter case, if either party is dissatisfied he may object, and except to such statement, and thus preserve his right to have the correctness of the judge’s finding of facts reviewed by an appellate court. But .if no exception be taken to the judge’s statement of facts, the parties will be presumed to have assented to them, and are concluded by them and their legal effect: ” Ginther v. Boro. of Yorkville, 3 Pa. Superior Ct. 403. Upon appeal the inquiry is as to the legal effect of the facts necessarily established by the verdict and those stated in the reserved point: Shelly v. Dampman, 1 Pa. Superior Ct. 115-122. The court draws conclusions of law from the facts, not conclusions of fact from the evidence. The verdict has [50] established the execution of the contract and the amount of rent that had accrued, and was unpaid at the time of bringing suit; and, after a full consideration of the question, we conclude, that the facts set forth in the reserved point are not sufficient in law to prevent the entry of judgment on the verdict. The judgment is reversed and judgment is now directed to be entered in favor of the plaintiff on the verdict.