Oswald v. Fratenburgh

• Decision Date: 22 December 1886
• Citation: 31 N.W. 173,36 Minn. 270
• Parties: OSWALD v FRATENBURGH AND OTHERS.
• Court: Minnesota Supreme Court

36 Minn. 270

31 N.W. 173

OSWALDvFRATENBURGH AND OTHERS.

Supreme Court of Minnesota.

December 22, 1886.

Appeal from the district court, St. Louis county.

Action in the district court, St. Louis county, against Jacob M. Fratenburgh, as principal, and Wallace Warner and Michael Fink, as guarantors, to recover a balance due for rent on a lease. Defendant Fratenburgh, before entering into possession under the lease, assigned the same to Fagan & Magner. Thereafter, before the lease was delivered, defendants Warner and Fink executed the following: “For a valuable consideration, we hereby guaranty the payment of the rents under the within lease promptly, as the same are required therein.” Subsequently there was a purported assignment by Fagan & Magner of the balance of the term to one Carbis, who defaulted in his rent. Defendants Warner and Fink maintained that they guarantied for Fagan & Magner, the assignees of the lessee, only, and they not being in default at the date of their assignment, said defendants are not liable for rent accruing after said date. There was a judgment against all the defendants. From an order refusing a new trial defendants Warner and Fink appeal. Ensign & Cash, for respondent, Oswald.

Edson & Warner, for appellants, Warner and another.

MITCHELL, J.

The facts fully appear in the findings of the court. The important question here is, upon the facts found, for whom were defendants Warner and Fink guarantors? A guaranty is an undertaking to answer for the performance of some contract of another. The contract of guaranty presupposes another and original contract, to which it is collateral. In this case the contract of guaranty was between Warren and Fink, as guarantors, and plaintiff as guarantee. The original contract to which this was collateral was the lease from plaintiff to Fratenburgh. This was the only contract to which the guaranty could be collateral, for Fratenburgh was the only person with whom plaintiff made any contract. She had no contract with Fagan & Magner. They were simply assignees of Fratenburgh. It is true that the lease from plaintiff to Fratenburgh had not been delivered prior to the assignment by him to Fagan & Magner, because of the lack of guarantors; but, when delivered, it was the contract of plaintiff with Fratenburgh, and not with Fagan & Magner. It is also true that Warner and Fink did not make this guaranty until Fratenburgh had indorsed upon the lease this assignment to Fagan &...