Weiler v. Henarie

• Decision Date: 31 March 1887
• Citation: 13 P. 614,15 Or. 28
• Parties: WEILER and others v. HENARIE.
• Court: Oregon Supreme Court

13 P. 614

15 Or. 28

WEILER and others v. HENARIE.

Supreme Court of Oregon

March 31, 1887

Appeal from circuit court, Multnomah county.

John M Gearin, for appellant.

Geo. H Williams, for respondents.

THAYER, J.

The respondents commenced an action in the court below against the appellant, to recover the sum of $400, alleged to be due upon a written guaranty, executed by him to the respondents. It is stated in the complaint, in substance, that on March 1 1886, the respondents leased certain premises in Portland to Edward Martin, for 25 2/3 months, at $250 per month, monthly in advance, and that the appellant, in consideration of the lease and of one dollar, guarantied the payment of $200 per month of said rent for the whole period, and that the rent for November and December, 1886, was due and unpaid, of which the appellant had due notice, and that demand had been made on him.

The appellant, after having demurred to the complaint, and the demurrer had been overruled, interposed an answer denying that the alleged guaranty was given in consideration of the lease, or for any consideration except one dollar, and set out in the answer a copy of the guaranty in full. The appellant also alleged a former recovery in favor of the respondents against the appellant, in an action brought by the former against the latter upon the same guaranty for the payments claimed to have matured September and October, 1886, and obtained a judgment for $150, which he claimed as a bar. The appellant alleged, in the matter of defense claimed to be a bar, that the said court adjudged that he should pay but the $150 on said guaranty for said months, for the reason that said Martin had paid rent for the first six months of said lease amounting to $1,450, and the court applied the excess over and above the $200 a month, amounting to $250 upon the two months sued for in the former action, which judgment had been paid and accepted by the respondents. The guaranty set out in the answer is as follows:

"SAN FRANCISCO, March 1, 1886.

"In consideration of one dollar, to me paid, receipt of which is hereby acknowledged, I hereby guaranty to Messrs. A.I. Weiler & Co., of Portland, Oregon, the sum of two hundred dollars per month, payable in advance, in U.S. gold coin, for a period of twenty-five and two-thirds months from above date, aggregating five thousand one hundred and thirty-three dollars, ($5,133,) being for rent of premises known as No. 134 First street, Portland, Oregon, for the term beginning March 1, 1886, and ending April 20, 1888.

"D.V.B. HENARIE."

It was also alleged therein that, by the terms of said lease to Martin, it was provided that, on non-payment of rent for five days after due, the lease should be forfeited, and the lessors might repossess themselves of the premises.

The respondents demurred to the answer, which the court sustained, and entered the judgment appealed from. The main question in the case is the legal obligation imposed upon the appellant by the written instrument above set out. The appellant's counsel claim (1) that it is an entire agreement, and, a judgment having been obtained thereon, is a bar to any further recovery upon it; and (2) that the appellant's obligation under the agreement is collateral, and does not arise until an attempt has been made to recover the rent from Martin. The guaranty is the payment to respondents of the sum of $200 per month, payable in advance, for a period of 25 2/3 months for rent of premises. It is not shown upon the face of the guaranty for whom it was intended to answer, but it is evident from the terms of it that it is an undertaking on behalf of the lessees of the premises referred to therein, and who is shown by the averment in the complaint to be Edward Martin. The fact that said Martin leased the premises for the term specified in the guaranty indicates very strongly that it was an undertaking on his behalf; that, and surrounding circumstances would materially aid in its construction. It is conceded by the answer that Martin was to pay for the rent of the premises $250 per month, monthly in advance. It could not reasonably be claimed that Martin was not to pay any rent until the end of his term. The words, "monthly, in advance," precluded any such view; and how can the guaranty receive any different construction in that particular? The words, "per month, payable in advance," occur in that, and it seems to me should receive the same construction in that respect as the lease. Those words, "payable in advance," mean something, certainly, and we must conclude, either that the gross sum, $5,133, was intended by the instrument to be made payable in advance, or that $200 each month was to be paid in advance.

In the former case the contract would be entire; in the latter severable. It is very evident to my mind that Henarie could not have been compelled, as soon as he executed the guaranty, to pay the entire sum referred to, and it is equally clear that $200 thereof could have been enforced against him at said time, and a like sum at the beginning of each month...