Otto v. Jackson

Mr. Justice Bbeese delivered the opinion of the Court: This was an action of covenant brought by appellee against appellants as guarantors, on their sealed guaranty that certain lessees should execute and perform the covenants of the lease. The lease was executed by appellee of the first part, and by Zitsche and Both of the second part. The guaranty is as follows : For and in consideration of the sum of one dollar to us in hand paid, the receipt of which is hereby acknowledged, we do hereby guarantee the punctual performance of all the within covenants in every particular on the part of the lessees. Witness our hands and seals, &c. The declaration contained three counts, setting out the lease in each. The third count avers the execution of the lease, the covenant of the lessees to yield up possession of the premises at the expiration of the term, and the agreement of the defendants to guarantee the performance of the covenants. It also avers that the lessees took possession of the premises under the lease, and assigns for breach that the lessees failed and refused to yield up the possession of the premises to the plaintiff at the expiration of the term, by reason whereof the plaintiff alleged he had been deprived of the use of the premises, and had lost large sums of money, &c., and the defendants had failed to keep their covenant, but had broken the same, &c. These allegations were met by pleas of defendants separately filed, denying all of them, and issue was taken on them all. A verdict was found for the plaintiff, a new trial refused, and the case brought here by appeal, on a bill of exceptions. Several questions have been mooted which we do not consider sufficiently important to discuss, the marrow of the controversy being found in the- fourth instruction given for the appellee. It is as follows: If the jury believe from the evidence in this cause that the tenants, Roth and Zitsche, covenanted to yield up the premises in question at the end of their term in as good condition as when they entered upon them, and they failed to keep said covenants, then their sureties became liable for all the damages which the plaintiff sustained by reason of such failure. The amount of rent stipulated in the lease is, presumptively, the true measure of damages, the same to be computed by reference to the time during which the plaintiff is shown to have been kept out of possession. The appellant contends that this instruction is not only erroneous, but absurd and illogical, calculated to mislead the jury, and without it this court should presume that the verdict, wholly unsupported as it was by the evidence, would not have been found. By reference to the third count of the declaration, it will be perceived the breach assigned was for not delivering up the premises at the expiration of the term, and all the evidence in the cause was directed entirely to that point, and to no other. There was no breach of a covenant to repair, assigned, and no effort to establish such a claim by proof. ' In the lease there is a covenant to surrender the premises in as good condition as when the lessees entered, but there was no claim made that they had suffered the premises to get out of repair, for which damages were claimed. How the jury could have been misled by this, about which there was not a particle of proof, it is difficult to perceive. The claim was, that the premises were not surrendered at the expiration of the term, and to that only had the evidence pointed and the attention of the jury been called. It would have been better, perhaps, if those words had been left out, as they had nothing to do with the case, but it is quite impossible that the insertion of them could have misled any sensible jury, the more especially as they were told by the same instruction that the amount of rent stipulated in the lease was the measure of damages. This shows conclusively that to no claim for damages, other than those consequent upon the refusal to surrender the possession, could the minds of the jury stray. The language of the covenant was incorporated into the instruction, but was not the language of the breach, and could do no injury. That the measure of damages was correct, is apparent from the following cases decided by this court: McKinney v. Peck, 28 Ill. 174; Prickett v. Ritter, 16 id. 96. Another objection was taken by the appellants, deserving consideration. On the trial, they objected to the admission of the lease in evidence, on the ground that there was no proof of its execution by Both, one of the lessees. The lease and the guaranty indorsed upon it, must be taken as one entire agreement. It is fairly inferable, from the terms of the guaranty, that it was written upon the outside page of the lease, else there could be no application of the word “ within,” as used in the guaranty. There were, then, technically, two instruments on which the suit was brought, but practically, but one to which our practice act applied. Ho proof of the execution of either was necessary, as there was no denial, on oath, of their execution. But on another ground, the appellants were estopped by their guaranty from denying the execution of the lease. In principle, this is analogous to the case of Shaw et al. v. Havekluft et al., decided by this court. 21 Ill. 128. That was a suit against the sureties of a constable on his official bond, in which they made the point that the principal in the bond was not a constable. We held the execution of the bond estopped the sureties from denying that fact. So here, entering into this guaranty, was an acknowledgment by the guarantors, that the lease was duly executed by both lessees. An estoppel is said to be an admission of a nature so high and conclusive that the party whom it affects is not permitted to aver against it or offer evidence to controvert it. A case is referred to by the counsel for appellee, very much in point with this case, and the reasoning and argument of the opinion of the court quite satisfactory and conclusive. It is the case of McLaughlin v. McGovern, 34 Barb. 208. Another objection made by the appellants, it may be well to notice. It is, that the appellee was not entitled to maintain his action, because he was not named in the covenant of guaranty. Holding, as we do, the lease and guaranty indorsed upon it, to be but one instrument, if the covenantee be sufficiently designated in either, this enables him to maintain his action. Suppose the appellants had embodied the lease in the writing of guaranty, would it be pretended a covenantee, as to them, was not named? Can there be any difference, where the guaranty refers in express terms to the lease, as in this case ? If they had recited the lease in their undertaking, no one will deny, that would have been a sufficient designation of the covenantee. The cases cited by appellee, of Bailey et al. v. Freeman, 11 Johns. 219; of Rogers v. Kneeland, 10 Wend. 218, and McLaughlin v. McGovern, supra, are in point. The irregularity appearing on the declaration, it being entitled of September Term, 1858, cannot be taken advantage of after plea and verdict. It is cured by the statute of jeofails. That it was the duty of the' lessees to surrender the premises to appellee, there can be no doubt; it was so covenanted in the lease, and the guarantors are responsible on failing so to do. The judgment must be affirmed. Judgment affirmed.