Kennedy v. Moyer

CRAIL, J.

This is an appeal from a judgment in an action brought to recover instalments of rent which were alleged to be due the plaintiff under a written lease whereby two of the defendants had agreed to pay a certain sum per month for years and the third defendant, Stephen G. Long, had guaranteed the same. It was alleged by the defendants that the lessor and the lessees entered into a subsequent oral executed agreement whereby the amount of the monthly payments was reduced. The trial court found that such oral

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agreement was entered into and that it was fully executed during the period commencing May 1, 1931, and ending October 31, 1932, and the court therefore refused to give judgment in favor of the plaintiff for the excess between the amounts paid and the amounts to be paid under the written lease during said period, although it gave judgment based on the full amounts designated in the written contract for the remainder of the period covered by the lease.

It is the first contention of the appellant that the evidence is insufficient to support the findings as to the subsequent oral executed agreement. It is our duty, of course, on appeal to view the evidence in the light most favorable to the respondents. We have reviewed the evidence and we find that there is substantial evidence to sustain the findings. The judgment against George L. Moyer and Thomas O. Long is therefore affirmed.

However, on the above facts the court concluded that “the defendant Stephen G. Long was released from any obligation under the lease by the alterations in its terms as above stated, made without his consent, and that he is entitled to judgment for his costs”. Appellant contends that the court erred in so ruling. The respondents contend “that

any

modification of an original contract which works some change in the rights, interests, or obligations of the parties, whether beneficial or detrimental, operates to release a guarantor . . .”, and they rely upon the case of

Julian

v.

Gold,

214 Cal. 74 [3 Pac. (2d) 1009], They say that “the foregoing case holds that in so far as such an oral agreement is executed it constitutes a binding and valid modification of a written lease”. It is true that the court does make the following quotation from 43 A. L. R. 1458: “It is a rule established by many well-considered eases that parties to a lease cannot escape from their secondary (modifying) agreement on the ground of want of consideration, where it has been fully executed ...” But this falls far short of sustaining the respondents’ contention. The thesis of the opinion in the Julian case is that