Whetstone v. McCartney

Ellison, P. J. — Plaintiffs having recovered below, defendant brings the case here asking a reversal of the judgment. The case shows that plaintiffs leased to defendant certain real property for two years by an instrument which contained the following clause: “For the use and rent thereof, the said J. R. McCartney hereby promises to pay to said Whetstone Bros., or to their order, six hundred dollars, for the whole time above stated, and to pay seventy-five dollars every three months.” Also the following clause : “In the event that said McCartney should desire to sell his lease, the Whetstone Bros, agree to give him privilege to do so by the said McCartney guaranteeing the rent for the time.” Pending the term, defendant assigned the lease to W. H. Longmore and W. W. Maupin, and plaintiffs recognized them as tenants by accepting rent from them. This suit is for the last three months rent which both defendant and his assignees have refused to pay; and was originally instituted against defendant and the assignees, being dismissed as to the latter at the close of the trial. There are two ways in which a lessee may be liable to his lessor ; one arises from his express covenant to pay whereby he is held in privity of . contract; the other arises, in the absence of an express covenant to pay rent, on an implied obligation, whereby he is held in privity of estate. In the latter case, if he parts with the estate, with consent of lessor, thereby destroying the privity, there is no further obligation to pay rent, since there is nothing upon which to base the obligation. But if he has expressly covenanted to pay, the contract lasts till discharged and the covenant may be said to run with the land, and this is so, even though [435] the lessor has consented to the assignment by the lessee and accepted rent of the assignee. The assignee is likewise liable to the original lessor for the term he occupies, not by reason of a promise, but by reason of the privity of estate. And the lessor may pursue one, or both, at the same time, though he will be entitled to but a single satisfaction. Taylor’s Landlord & Ten. sec. 438; Boot v. Wilson, 8 East, 311; Wadham v. Marlow, 8 East, note; Stains v. Morris, 1 V. & B. 11; Arthur v. Vanderplank, 7 Mod. 198; Thursby v. Plant, 1 Saunders, 237; Taylor v. DeBus, 31 Ohio St. 468; Sutliff v. Atwood, 15 Ohio St. 186; Lodge v. White, 30 Ohio St. 569; Port v. Jackson, 17 Johns. 239 and 479. These observations will, I think, be of material aid in determining the question raised here as to the proper interpretation of the clause of the lease last quoted. Defendant contends that this clause is one of technical guaranty and that therefore he is not liable as an original promisor. My opinion is that it is merely a cautionary clause, or a reiteration of the first. The first clause (quoted) amounts to an express covenant to pay the rent for the period of the lease, and as such, as we have seen, it binds defendant by express contract, notwithstanding the assignment and acceptance of rent. This being so, I cannot bring myself to conclude that it was intended by the last clause to annul the first and substitute the collateral or contingent liability of a guarantor. It is far more reasonable to suppose that the parties, seeing they had agreed there might be a substitution of tenants, only stated in terms in the second clause what the law put upon them under the provisions of the first. It was like this : It is agreed you may substitute tenants, but you cannot substitute liability. I perceive no merit in the objection to the dismissal of the suit at the close of the trial, as to the assignees. Defendant and the assignees were each clearly liable under the views above presented. Whether they should [436] have been joined in one action, or been pursued in separate actions, need not be considered, as they had been separated by the dismissal. The plaintiffs enter remittitur for the amount of the judgment in excess of eighty-one dollars, and for this sum the judgment will be affirmed. All concur.