Whetstone v. McCartney

• Decision Date: 19 November 1888
• Parties: THOMAS M. WHETSTONE et al., Respondents, v. J. R. MCCARTNEY, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 430

THOMAS M. WHETSTONE et al., Respondents, v. J. R. MCCARTNEY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Appeal from Clinton Circuit Court. --Hon. JAMES M. SANDUSKY, Judge.

AFFIRMED.

The case is stated in the opinion.

S H. Corn, for the appellant.

(1) After the assignment of the lease, McCartney's liability for the rent (if liable at all) was a collateral liability made so by the terms of the lease. Bank v. Shine, 48 Mo. 463; Allen v. Bank, 4 Mo.App. 66; Shine v Bank, 70 Mo. 524. The liability of the assignees Longmore and Maupin for the payment of rent to plaintiffs was direct. Smith v. Bunker, 17 Mo. 148; 2 Taylor on Land. and Ten. [8 Ed.] 1. The guarantor and principal debtor cannot be jointly sued. Graham v. Ringo, 67 Mo. 324. And in such suit no judgment can be rendered against the guarantor. Parmelee v. Williams, 71 Mo. 410. (2) The dismissal as to Longmore and Maupin, and the amendment of the petition did not authorize judgment against McCartney. The petition still stood alleging a direct and absolute liability for the rent sued for, while the lease introduced in evidence showed McCartney's liability to be that of guarantor only. They cannot declare on one cause of action and recover on another. Perry v. Barrett, 18 Mo. 140; Bank v. Armstrong, 62 Mo. 50; Kuhn v. Weil, 73 Mo 213; Weil v. Posten, 77 Mo. 284, 287; Lenox v. Harrison, 88 Mo. 495. The theory upon which the petition was framed and the case tried was that of a joint undertaking for the payment of the rent accruing after the assignment. The theory on which they take judgment is that McCartney is liable on his guaranty because of the non-payment by his assignees and demand made of him. They cannot recover on a theory differing from the one set up in the petition. Clements v. Yeates, 69 Mo. 625, 626; Ellis v. Railroad, 17 Mo.App. 126; Phleger v. Weltner, 21 Mo.App. 580; Kump v. Foster, 22 Mo.App. 643; Stix v. Mathews, 75 Mo. 96, 99. Nor can they by a dismissal as to Longmore and Maupin deprive McCartney of a legal defense to the action. No judgment could have been taken against him as the case stood when finally submitted to the court. See Parmelee v. Williams, 71 Mo. 410; Keithley v. May, 29 Mo. 220; Browning v. Christman, 30 Mo. 353. (3) The object of the non-suit as to defendants Longmore and Maupin, and the amendment to the petition was to deprive McCartney of his defense as it stood upon the pleadings and evidence, and change the cause of action to a suit against him on his guaranty; thus not only depriving him of his defense to the suit as it stood, but also of any defense he might have against a suit of that character. This was certainly error. R. S. sec. 3567. Burcher v. Death, 15 Mo. 275; Erwin v. Childs, 28 Mo. 576. (4) Before the amendment judgment was demanded for seventy-five dollars and costs; after the amendment, for that amount and interest at six per cent. from the time it was demanded (Sept. 1885), and judgment was so entered. The claim was not due until December 1, 1885.

Roland Hughes, for the respondents.

(1) If, as claimed by appellant, this is a technical guaranty creating a collateral liability, then I admit this action cannot be maintained. The view was taken by counsel, when this suit was instituted, that the proper construction of said clause was not to create a technical guaranty and the creation of a collateral liability, but that the evident intention of the parties was simply, that in the event McCartney desired to sell his lease and put some one else in the premises, his liability to pay the rent was to continue. Or, in other words, the landlord would not release him from his liability to pay rent; and if he desired to put in some one else he must look after their solvency and responsibility; if they paid, all well and good, so far as the landlord was concerned; McCartney's liability was to continue the same. This was evidently the design and intent of the parties. If any payments were made they were on McCartney's account. The plaintiffs never ceased to look to McCartney for the rent. (2) This was the view taken by the court on the trial, and also upon the motion for a new trial which was quite elaborately argued. It seems to be the plain, natural, evident intent of the parties. It certainly was the intention of these parties. The court will sustain the instrument in the light of the intention of the parties, and not give a technical import to the words, when such intent would be thereby frustrated. In the case of Wright v. Dyren, 48 Mo. 525, the court held the following words, " I assign the within note to A., for value received, and guarantee its prompt and full payment," created a direct promise, and not a collateral one, a contract of suretyship and not of guaranty. To same effect is Allen v. Rightmore, 20 Johns. 364. " For value received, I guaranty the payment of the within note, and waive notice of unpayment," was held a direct promise, and not a collateral promise in Luqueer v. Prosser, 1 Hill [N. Y.] 256. So an endorsement in these words, " This may certify that I guaranty the payment of the within note," was held to bind the third party as a joint and several maker. Hough v. Gray, 18 Wend. 202. So we see the use of the word guaranty does not, of itself, create a collateral undertaking. See Colebrooke on Collateral Securities [1 Ed.] 329. (3) If the technical nicety of construction contended for by appellant, is to be indulged, then the clause referred to is only an offer of guaranty. It is in effect, Whetstone Bros. saying, " In the event you desire to sell [sub-let] your lease, we will [at the time you wish to do so] consent to it; provided, you then [at time aforesaid] enter into a contract of guaranty for the balance of the rent." If this nicety of construction is to obtain, then no contract of guaranty was ever made. ( a ) The clause in lease in controversy does not create a guaranty, but is a contract of suretyship, or a direct liability. (b ) If the contract was not a direct liability, it was only an offer of the lessee to consent to an undertenancy, upon the lessee's entering into a contract of guaranty and this never having been done, the suit was properly brought against McCartney. Taylor on Land. and Ten. [4 Ed.] sec. 448. (c ) The liability of lessee and his assignees was a joint and several liability. R. S. secs. 3095, 658. (d ) Plaintiff could dismiss his suit, as to any defendants any time before judgment. R. S. secs. 3541, 3556; Lawson v. Shreve, 26 Mo. 492; Templeton v. Wolf, 19 Mo. 101. (e ) The rent was not due until December 1, 1885, and the judgment was erroneously given to include interest from October 1, 1885, thus giving two months' interest which plaintiffs were not entitled to. The evidence of Whetstone was that he demanded rent when due (Dec. 1) from Maupin & Longmore, and shortly afterwards from McCartney. It will be necessary for plaintiffs to enter remittitur for this excess, which they now here do, and ask court to affirm judgment for seventy-five dollars, and interest at six per...