Fiester v. Drozda

• Decision Date: 01 March 1913
• Citation: 171 Mo. App. 604,154 S.W. 441
• Parties: FIESTER v. DROZDA.
• Court: Missouri Court of Appeals

154 S.W. 441

171 Mo. App. 604

FIESTER v. DROZDA.

St. Louis Court of Appeals. Missouri.

March 1, 1913.

1. GUARANTY (§ 27) — NATURE OF CONTRACT — CONSTRUCTION.

An instrument providing that if a lessee failed to pay the rent specified in a lease, or if the lease was forfeited for any reason, defendant guaranteed the payment of rent to the lessor for three months from the date it was due and unpaid, or when the lease was forfeited, was a contract of guaranty rather than suretyship, the terms of which were to be strictly construed, and under which the guarantor's liability could not be extended by implication.

2. GUARANTY (§ 36) — SUBSEQUENT CONTRACT — CONSTRUCTION — ACTION — EVIDENCE.

Plaintiff leased premises to H.; defendant agreeing to guarantee payment of rent in case of the lessee's failure to pay for three months from the date the rent was due and unpaid or the date the lease was forfeited. H. continued in possession until February 16, 1910, when he surrendered to parties to whom he had assigned the lease on January 10th; plaintiff consenting to the assignment on condition that defendant remain "fully bound by the obligations imposed on him in said lease." By a written instrument executed February 16, 1910, defendant agreed to remain bound by his guaranty to plaintiff, and by all the conditions of the written consent of plaintiff to the assignment of the lease "in all respects as if the assignment had not been made and said consent had not been granted." Held, that such consent was not a new contract of guaranty for the payment of rent by the assignees, separate from and independent of the original undertaking of the defendant, but that defendant's obligation was limited to the original guaranty; and hence defendant, when sued on the guaranty, was entitled to prove a payment to plaintiff of rent in arrear for three months prior to the assignment of the lease in discharge of his obligation.

3. GUARANTY (§ 59) — NEW CONTRACT — EVIDENCE.

Evidence of a payment of a small part of the rent for a month subsequent to the assignment was insufficient to show that defendant intended to assume liability under a new and separate guaranty.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Adrian U. Fiester against William S. Drozda. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

B. O. Davidson and A. R. Russell, both of St. Louis, for appellant. Lubke & Lubke, of St. Louis, for respondent.

ALLEN, J.

This is an action against defendant as guarantor upon a lease. On March 27, 1909, the plaintiff leased certain premises in the city of St. Louis to one Charles Howell for a term of four years, at a rental of $315 per month, payable monthly in advance. The defendant became a guarantor for the lessee Howell by the following writing, signed by him, upon said lease, viz.:

"In case said lessee fails to pay the rental specified in the foregoing lease, or said lease is forfeited for any reason, then I hereby guarantee the payment of rent to said lessor for the premises herein leased to said Charles Howell, for the term of three months from the date such rent is due and unpaid or the date said lease is forfeited.

                              "William S. Drozda. [Seal.]
                  "St. Louis, Mo., March 27, 1909."
                

The lessee, Howell, went into possession of the leased premises, and continued in possession until February 16, 1910. On January 10, 1910, Howell executed an assignment of all his right, title, and interest, as lessee, in and to the lease, to one Sam Gross and one Leonhard Offermann. On February 12, 1910, the defendant made a written request upon plaintiff, the lessor, to consent to said assignment by Howell to Gross and Offermann for the remainder of the term of the lease; and on the same date the plaintiff executed a written consent thereto, stipulating, however, as one of the conditions therein, "that the said W. S. Drozda, as guarantor and surety, remains fully bound by all the obligations imposed on him in said lease." Thereupon, on February 16, 1910, the defendant Drozda executed the following writing:

"I, W. S. Drozda, surety and guarantor for Charles Howell, lessee, in and of his obligation under the aforesaid and hereto attached lease, do hereby accept the terms and conditions of the aforegoing consent to the assignment to Sam Gross and Leonhard Offermann by Charles Howell, lessee, of his interest in said lease, and in consideration of the sum of one dollar to me paid by Adrian U. Fiester, do also hereby consent to the aforegoing assignment of said lease and do agree and acknowledge that I am and do remain bound as fully by my guaranty to said Adrian U. Fiester, and all the conditions of said consent in all respects as if said assignment had not been made and said consent had not been granted.

                             "William S. Drozda. [Seal.]
                 "St. Louis, Mo., Feb. 16, 1910."
                

It is averred by the petition that the new lessees, Gross and Offermann, failed to pay the rent for the premises for the months of June, July, and August, 1910, aggregating $945, and that the defendant also refused to pay the same; and judgment is prayed against the defendant for said rental for these three months. The answer is a general denial, coupled with the averment that the original lessee, Howell, and the new lessees, Gross and Offermann, failed and neglected to pay the rent of said premises for the months of February, March, April, and May, 1910, amounting to $1,260; that the defendant, in pursuance of his undertaking and on default of said lessees, paid plaintiff the said sum of $1,260, whereby all of defendant's obligation, upon his undertaking in the premises, was fully discharged. The reply was a general denial of the new matter in the answer.

The cause was heard before the court and a jury. Upon the trial it was shown, on behalf of plaintiff, that the new lessees had failed to pay the rent for the months of June, July, and August, and that plaintiff had, by landlord's summons before a justice of the peace, obtained possession of the premises on September 1, 1910. One Wissmann, a witness for plaintiff, and who was a collector for the real estate firm having charge of the property for plaintiff, testified that the rent for the months of December, 1909, and January and February, 1910, had been paid by checks of the defendant. He identified a rent receipt dated December 17, 1909, and a check of defendant attached thereto for $315, bearing the same date and payable to J. E. Kaime & Bro., plaintiff's agents in charge of the property. He likewise identified a similar receipt and a like check for the same amount, dated January 13, 1910; also a similar receipt and a like check for the same amount dated February 9, 1910. It appears that in these receipts, after the printed words "received payment," the words "from W. S. Drozda" were written in. The witness stated that he had written these words on the receipts at the request of the defendant; the latter saying that he had had some trouble with Howell, and "was going to wind up" with him, and wanted to be able to produce the receipts to show that he had made these payments.

On redirect examination Wissmann testified that he first went to Howell for these rents; that Howell at first wanted to make partial payments on the rent, which the witness would not accept; that Howell thereupon said that he would...