Bakersfield Improvement Co. v. Bakersfield Theater Co. (1919) · DecisionDepot

Bakersfield Improvement Co. v. Bakersfield Theater Co.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Apr 18, 1919 No. Civ. No. 2760.Published

Before: Langdon

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Holding. The court held that a surety bond executed after the date specified in a lease is supported by the original consideration of the lease when the lease provides for such a bond, and that a lessor may extend the time for performance of a condition precedent without waiving it. Furthermore, the court held that a plaintiff may proceed against one of several jointly and severally liable defendants without serving all parties.

Issues

Whether a trial may proceed against one of several jointly and severally liable defendants when others have not been served.
Whether a surety bond executed after the date specified in a lease is supported by the original consideration of the lease.
Whether a lessor's extension of time for the performance of a condition precedent constitutes a waiver of that condition.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Where there is a several liability, the court has a right to render a several judgment against any defendant without regard to the liability of any other defendant.”

“This bond is the one originally provided for, and has the same force and effect as if given at the time originally contemplated by the parties.”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge. Affirmed.

The facts are stated in the opinion of the court.

LANGDON, P. J.

This is an appeal by the defendant, Irving C. Ackerman, from a judgment in favor of the plaintiff in the sum of three thousand dollars against him and the defendant, F. A. Giesea, as sureties for the payment of rent under a lease in which the defendant corporation was the lessee.

[705]

[1]

Appellant contends, first, that as the corporation defendant was never served with summons and did not appear, the action was never at issue and a trial was improper. The action was prosecuted against the several defendants upon their joint and several- liability. Section 414 of the Code of Civil Procedure applies to such a situation and provides that when summons is served on one or more, the plaintiff may proceed agaipst the defendants served in the same manner as if they mere the only defendants. Where there is a several liability, the court has a right to render a several judgment against any defendant without regard to the liability of any other defendant.

(Anderson

Nawa,

25 Cal. App. 151, 156, 157, [143 Pac. 555].)

The appellant next presents the argument that the bond was given without consideration, and relies for this contention upon the following facts: The lease between the plaintiff and the corporation defendant was dated August 7, 1913. It provided that a bond should be executed on or before January 1, 1914, guaranteeing the payment of the rent thereunder. The term of the lease was not to begin until July 1, 1914. It was provided in the lease that the execution and delivery of the bond should, at the option of the lessor, be a condition precedent to the taking effect of the lease. The bond was not executed on January 1st. The bond in suit, in accordance with the requirements of the lease and in terms referring to the lease and guaranteeing its performance, was executed on March 27, 1914. The appellant insists that as the bond was not executed contemporaneously with the lease, it required an independent consideration. Counsel for appellant admits that under the rule laid down in the case of

Stroud

Bakersfield Improvement Co. v. Bakersfield Theater Co.

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Synopsis

LANGDON, P. J.

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