Callaghan v. Olsen

[97]

PREWETT, J.,

pro tem.

Action on a guaranty. The respondent leased to defendant Olsen certain real property for a period of twelve months at an agreed monthly rental of four hundred dollars.

At the same time, and as a part of the same transaction, the appellant executed to the respondent a certain written guaranty, wherein he did “covenant, promise and agree to and with the party of the second part (the respondent) that the said George L. Olsen shall well and truly pay the rents reserved for the last three months, to wit: for the three months commencing December 1st 1915 and ending February 29th 1916, to perform and execute all covenants therein contained on his part and that in his failure to do so in any particular, we will forthwith pay . . . the said rents that may be or become due under said lease for the last three months thereof, to wit: for the months commencing December 1st 1915 and ending February 29th 1916, and all damages that may happen or accrue by reason of such failure not exceeding the aggregate sum of $1,200.”

The defendant Olsen failed to pay the rent for the last three months of the term and the respondent thereupon brought this action against both parties to recover the same. The trial court rendered judgment as prayed for and the appellant appeals upon the judgment-roll alone. This eliminates all points save the sufficiency of the findings to support the judgment.

The appellant directs our attention to the following finding made by the trial court:

“That for several months during the tenancy of said defendant Olsen, said defendant paid to the agent of the plaintiff and the said agent received and accepted in payment of the rent for said months a sum less than the stipulated rate of rental under said lease; that none of said months is embraced within the period from December 1st 1915 to and including February 29th 1916, (being the period for which the rental herein sued for accrued and became due). That there is no evidence showing that the plaintiff had actual knowledge of the payment and acceptance of said reduced sums. That there was no written agreement between defendant Olsen and plaintiff either in person or by agent for any reduction of said rent or for