Ruffin v. Becker

BURNETT, J.

The judgment heretofore rendered was set aside to permit appellant to file his reply brief. His time had been extended several times in accordance with stipulations of the attorneys and apparently the last period agreed upon had expired. The cause was therefore deemed submitted and the judgment of affirmance followed. Thereafter it was made to appear that another stipulation had been signed by the attorneys for respondent giving appellant additional time to file his reply brief. Through inadvertence this stipulation had not been presented to the court, and the court was not apprised of its existence until after said judgment was rendered. No objection was made by respondent to the motion of appellant to reopen the case. We have considered said reply brief, but we adhere to the views expressed in the opinion heretofore rendered, which are as follows:

1 ‘ The appeal is from the judgment and order denying a new trial. There is no controversy as to the facts, the construction of a certain written instrument being determinative of the merits of the ease. The action was brought against Becker as lessee and Lilienthal as guarantor or surety for the recovery of the sum of $2,100.00' for rent of certain premises on Geary Street in San Francisco. As stated above, there is no dispute as to the terms of the lease, the amount due thereunder or that appellant Lilienthal guaranteed the payment of the rent. There are only two grounds upon which appellant relies for a reversal: (1) That a certain executory contract of sale dated April 29, 1908, operated as a release of the guarantor from all obligations created by said lease and (2) That the court erred in overruling appellant’s objections to certain questions asked of the plaintiff—the only witness examined at the trial.

“The said instrument of April 29, 1908, which appellant claims to have effaced his liability under the lease, was as follows: ‘This agreement, made this 29th day of April, 1908, between David T. Ruffin of San Francisco, California, first party, and E. R. Lilienthal of the same place, second party, Witnesseth:

[165]

“ ‘That first party has agreed to sell, and second party has agreed to buy that certain property in San Francisco. California, together with the improvements thereon (describing said leased property) for the sum of nineteen thousand dollars, whereof one thousand dollars have been paid by second party to first party contemporaneously herewith, and the balance shall be payable upon the completion of the purchase as . hereinafter provided.