Samuel v. Winkelman

Howell, J. -Tho, plaintiffs leased to tho defendant lYinkelman certain property for one year, from first August, 1865, with tho privilege of renewing the lease for-four years more for the same price and under the same conditions, provided written notice he given to the lessors at least throe months before the thirty-first July, I860. The defendant Frank Ileuer intervened in the act, and “ declared that he hereby hinds himself, jointly and in solido, with and as security for tho said lessee, for the punctual payment of the rent heroin stipulated, and of all costs and damages resulting from -any violation of any of the conditions of tho foregoing lease, hereby consenting to he hound as if ho were tho principal obligor herein, and renouncing tho plea and benefit of discussion or division granted by law to sureties.” The thirty days’ notice was given by the lessee; and in September, [728] 1867, this suit was instituted for the quarterly rent due on first of August of that yoar. The defendants filed separate answers, Heuer alleging that his responsibility ceased on thirty-first July, 1366, and was not renewed. Judgment was rendered against both in solido, and Heuer appealed. There is no proof that Heuer consented to the extension or renewal of the lease; but plaintiffs say that by his contract he was as much their tenant as Winkelman, and that the acts of the latter were his acts, of which ho is not permitted to plead ignorance. This position is untenable. The lease was niado to Winkelman as the tenant, and Heuer became his security, bound, it is true, as if he were the principal obligor in the lease, but only for the term of that lease, to wit, one year. The faculty of renewing was a privilege or right, to bo exercised by the lessee upon a given condition, and not an obligation assumed by the surety. lie was liable to the same obligations as the debtor himself (C. C. 8014, 2036) during the lease, but ho did not agree to be bound in the renewed or extended lease by the giving of the required notice to the lessors by the lessee. The clause in relation to the renewal oidy bound the lessors and the lessee to the same price and conditions, if the lease were renewed, as contemplated. The consent of the surety was necessary to bind him on the extended lease. His consent cannot be presumed from the terms of the original lease. It is, therefore, ordered, that the judgment herein against Frank Heuer be reversed, and that there bo judgment in his-.favor, with his costs in both courts. Rehearing refused.