Sagal v. Mann
| Decision Date | 16 July 1915 |
| Citation | 95 A. 6 |
| Parties | SAGAL v. MANN. |
| Court | Connecticut Supreme Court |
Appeal from City Court of New Haven: John R. Booth, Judge.
Action by Louis M. Sagal against Charles Mann to recover on a written guaranty for the payment of rent. There was a directed verdict for plaintiff, and defendant appeals. Affirmed.
From the undisputed material facts it appears that on October 8, 1910, one Rose A. Ward leased to Jacob Mann certain premises known "as a stable" in the city of New Haven. The lease contained the provision that the premises might be sublet by the written permission of the owner. On the 10th day of October, 1910, the defendant, Charles Mann, in writing, guaranteed the payment of the rent to be paid under the lease, which was indorsed on and made a part of the lease. This guaranty contained these provisions:
"For and in consideration of the letting of the premises above described, and for value received, I guarantee the punctual payment of the rent, and performance of the covenants in the above agreement mentioned, to be paid and performed by said lessee, without requiring any notice of nonpayment or nonperformance, or proof of notice or demand being made whereby to charge me therefor."
Jacob Mann then entered into the possession of the premises. On May 6, 1912, Rose Ward, in pursuance of the provisions of her lease to Jacob Mann, in writing consented that he might sublet the premises. This consent was, however, given upon the express condition that Rose Ward, the original lessor, would not release Jacob Mann from his promise to pay the rent under the provisions of the lease of October 8, 1910. The original lease contained the provision that the premises were "to be used as a livery stable, and not to be used for the storage and keeping of automobiles. This written consent to sublet did not contain this restriction. Aside from this there was no noticeable departure from the terms of the original lease in the permission to sublet. This permission to sublet was without the express consent or approval of the defendant. Jacob Mann shortly thereafter sublet the premises to one William J. Maher. Maher failed in the payment of rent and was dispossessed by Jacob Mann. Afterwards, on the 16th day of April, 1913, Jacob Mann procured an assignment to himself of the rights and interest of William J. Maher in and to these premises, and became the tenant of the plaintiff, and paid rent to him for several months under the terms and stipulations of the original lease. Rent accrued and became due to the plaintiff from Jacob Mann in the sum of $58 for the month of September, 1913, $67 for the month of November, 1913, and $125 for the month of December, 1913, all of which remained unpaid when this action was commenced.
It appears that, during the occupancy of these premises by Jacob Mann and Maher, they were used for the storage of automobiles. The evidence shows that the plaintiff had two distinct claims for rent against the debtor, Jacob Mann, the present one, which was guaranteed, and another, which was not guaranteed. Jacob Mann made payments from time to time to the plaintiff, without any direction or suggestion as to the application which he wanted to make of these payments. The plaintiff applied them as they were made to the claim which was not guaranteed.
Charles S. Hamilton, of New Haven, for appellant. Slade, Slade & Slade, of New Haven, for appellee.
RORABACK, J. (after stating the facts as above). The defendant claims that by the permission to sublet there was a radical and fundamental alteration of the contract between the original lessor and lessee, which discharged the defendant as guarantor from the payment of the rent. Some courts hold that, although departures from the principal contract or the change in its terms are not of a material nature, the guarantor will be released; but the weight of authority requires that such change should be of a material and substantial character to discharge him. 20 Cyc. 1444, 1445.
In the present case there was a provision in the original lease that the lessee might assign or underlet with the written consent of the lessor. The defendant was bound to know of this when he executed the guaranty. The written provision to sublet contained a provision to the effect that Jacob Mann was to remain liable for the payment of the rent notwithstanding the subletting. It is true that the sublease did not mention the restriction relating to automobiles. The written consent also set forth one or two unimportant stipulations which were not set forth In the original instrument; but the responsibility of the guarantor was not in any way extended or enlarged by the agreement to underlet. It remained in the precise terms it was before the subletting occurred. The...
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...thereon. Mann v. Mt. Union Tanning, etc., Co. (D. C.) 267 F. 448; Holcomb v. People's Trust Co., 205 F. 491, 123 C. C. A. 559; Sagal v. Mann, 89 Conn. 576, 95 A. 6; Antisdel v. Williamson, 165 N. Y. 372, 59 N. E. 207; Page v. Krekey, 137 N. Y. 314, 33 N. E. 311, 21 L. R. A. 409, 33 Am. St. ......
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