Lasky v. Bew

[394]

HALL, J.

Plaintiff brought this action as assignee of M. C. Lasky, and B. E. Lasky, copartners, to recover rentals in the sum of $1,375, and interest, on the monthly installments thereof as they fell due, upon a lease, under which Geo. E. Bew was the lessee and of which defendant J. Allec was claimed to be the guarantor.

Plaintiff recovered judgment against the defendant Bew, the lessee, as prayed for, but failed to recover judgment against defendant Allec, the alleged guarantor, who recovered judgment for his costs. Plaintiff appealed from that part of the judgment denying him a recovery against the guarantor.

There is also in the record an appeal from an order denying plaintiff’s motion for a new trial as against defendant Allec, but appellant in this court makes no point upon such appeal, but relies for a reversal of the judgment attacked solely upon the ground that upon the findings as made by the court he is entitled to judgment as prayed for against Allec.

The facts, as set forth in the findings of the court, upon which the correctness of the judgment depends,' are that defendant Allec signed a written guaranty, at the request of Bew, guaranteeing the performance upon the part of Bew of the conditions of a certain lease to which it was attached, and to which it referred, but which lease was not then executed or signed by either the lessors or the lessee. The guaranty was signed and bore date July 20, 1906.

The lease provided for certain improvements to be made by the lessors, and in terms provided that the rent reserved should commence at the completion of the improvements. The ending of the term was fixed at a certain date, but the beginning of the term was not expressly or in terms fixed. "When Allec signed the guaranty the lease was not dated otherwise than as appeared in the first line thereof, which was as follows: “This indenture, made this......day of July, 1906,” etc., etc.

Thereafter, on the said twentieth day of July, 1906, before the execution of said lease by Lasky & Lasky and Bew, they, without the knowledge of Allec, changed the first line thereof so that it read: “This indenture, made this 1st day of August, 1906,” and thereupon said lessors and lessee signed and executed the saíne, and the guaranty with the lease as so changed, attached thereto, was on said day delivered to the lessors, and