Stephens v. Daugherty

[734]

CONREY, P. J.

The plaintiffs appeal from two judgments entered in favor of the defendants, following upon orders sustaining demurrers to plaintiffs’ amended complaint.

As shown by the complaint, the plaintiffs, in October, 1912, made to one J. B. Dodson and his wife, Cora A. Dodson, a five-year lease of a certain apartment house in the city of San Diego for a stated aggregate rental payable at the rate of four hundred dollars per month. In that lease it was agreed as follows: “It is further understood and agreed that the parties of the second part as a part of this transaction shall cause to be executed and delivered to the said parties of the first part at the time of the execution of this lease, a good and sufficient guarantee or bond in the sum of twelve hundred ($1200.00) dollars, as security for the payment by the said parties of the second part of the rent of said premises for three (3) months of said term immediately following the surrender of said premises, to the said parties of the first part, if surrender is made, or the three (3) months immediately following the forfeiture of this lease by the parties of the second part, as the parties of the first part may elect.” The complaint alleges that as a condition of entering into said contract of lease, plaintiffs required of said lessees that they should furnish to plaintiffs a guaranty or bond to the effect above stated. Thereupon, in order to comply with that condition, and at the request of said lessees, at the same time and place, and as a part of the same transaction, and of said indenture of lease, the defendants, for the benefit of the plaintiffs and in consideration of the execution of said lease, made, executed, and delivered to the plaintiffs an undertaking, which is set forth in the complaint. The recitals of the undertaking refer to the above-mentioned stipulation contained in the lease, and by said undertaking the defendants guaranteed that “if said property described in said lease should be surrendered to the lessors, or if the said lessees should forfeit the said lease, then and in that case, we, or either of us, promise to pay to the said Frank A. Stephens and Florence L. Stephens twelve hundred ($1200.00) dollars, said twelve hundred ($1200.00) dollars shall become due and payable immediately upon the surrender of said premises to the said lessors, if surrender should be made, or immediately upon the forfeiture of this lease by the said lessees, if forfeiture should be made, as said lessors may elect.” The guaranty was ac