Jack v. Sinsheimer

COOPER, C. This is an action brought by plaintiff to quiet his title to a certain tract of land described in the complaint. The defendant answered, and in his answer set forth a certain mortgage made by one Cheda, which mortgage was claimed to be a valid lien upon the premises in favor of defendant. The plaintiff demurred to the answer upon the ground that the facts therein stated did not constitute any defense to the action; the demurrer was sustained, and, defendant declining to amend, judgment was rendered against him. This appeal is by defendant from the judgment and for the purpose of reviewing the order sustaining the demurrer. It appears from the answer that on June 19, 1891, one Andrews, as lessor, leased to one Cheda, as lessee, certain premises in San Luis Obispo county for the period of five years from and after October 1, 1891, at an annual rental of two thousand dollars, one-third of the annual rent payable every four months in advance. This lease contained the following covenant:

“And the said party of the second part (Cheda) does hereby covenant, promise, and agree to pay to said party of the first part (Andrews) the said rent, in the manner hereinbefore specified, .... and, upon his failure to pay said rent, he shall vacate said premises upon receiving thirty days’ notice from the party of the first part, and shall pay to him the sum of one thousand dollars, as settled and liquidated damages.”

At the time of making the said lease the defendant signed an indorsement thereon in the following language:

“In consideration of the making of the foregoing lease or agreement, and for the purpose of securing the penalty of one thousand dollars therein provided for, I hereby guarantee the payment of one thousand dollars unto said Truman Andrews, whenever, at any time during the term therein limited and provided for, the said J. A. Cheda shall be legally evicted from said premises for nonpayment of rent therein provided for, or whenever he voluntarily vacates the same, upon ten days’ notice.

“Dated June 19, 1891.

“B. SINSHEIMEB.”

On January 25, 1894, the said Cheda was the owner in fee of the property described in the complaint in this action, and [565]while such owner, on said last-named day, he made to the defendant a mortgage thereon, which mortgage was duly acknowledged and recorded, and which was given for the purpose of securing defendant “against all cost, damages, and expenses incurred, suffered, or accruing to said mortgagee By reason of a certain written guaranty made By him upon the part of and for said J. A. Cheda, upon and about a certain lease this day executed between Truman Andrews and J. A. Cheda, to which lease reference is hereby made.” On September 1, 1896, the said Cheda was in default for rent under the terms of said lease, and thereupon proceedings were commenced to evict and eject him from the leased promises. Afterward, judgment was duly given and made against said Cheda and he was legally evicted from the said premises, and he has never paid the rent so due or the said one thousand dollars. Notice of the nonpayment of rent and of the default of Cheda was given to defendant and demand made upon him for the payment thereof. Defendant has not paid the same, hut claims that he has a right to the security given by the mortgage until he is fully released from said guaranty. The principal question in this case is as to whether or not the clause in the lease fixing the sum of one thousand dollars as liquidated damages in case of the premises being vacated by the lessee is void. The rule that a guarantor is never implicated beyond the strict terms of his contract must be applied to defendant in this case. His guaranty was “for the purpose of securing the penalty of one thousand dollars .... whenever at any time during the term therein limited and provided for the said J. A. Cheda shall be legally evicted from said premises for nonpayment of rent, or whenever he voluntarily vacates the same.” The guaranty was therefore by its terms to secure a penalty of one thousand dollars which by the lease was fixed as liquidated damages in case the lessee should he evicted from the said premises or voluntarily vacate the same. The provisions of our code are as follows: “Every contract by which the amount of damage to be paid, or other compensation to he made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.” (Civ. Code, sec. 1670.) “The parties to a contract may agree