Cunningham v. Norton

HAYNES, C. Richard Cunningham was the owner of certain premises known as the “San Bruno Hotel,” and leased the same to M. J. McBride, the rent to be paid to his wife, Mary Cunningham, since deceased.. Norton, the appellant here, executed a written guaranty that he would pay to Richard Cunningham all rents that might remain due and unpaid, “according to the terms of the written lease of the San Bruno Hotel”; and this action is upon said guaranty, to recover the sum of $550, which the lessee had failed to pay. The complaint alleged that the guaranty was executed and delivered at the time the lease was delivered, and in consideration of the delivery of the lease, as well as for other goodi and valuable consideration, and that, prior to the commencement of the action,. Richard Cunningham, to whom the guaranty was executed, assigned to Mary Cunningham, for a good consideration, said demand and cause of action. The answer denied these allegations, and denied “that there is due from defendant” said or any sum whatever. No other allegations were put in issue by the answer. The cause was tried without a jury, and findings and judgment went for plaintiffs, and this appeal is from the judgment and order denying defendant’s motion for a new trial.

Some exceptions were taken to evidence, but, as none of them are specified as error, they cannot be noticed.

It is specified that there was no evidence showing that there was any consideration to support the guaranty. Appellant does not discuss the evidence. He seems to rely upon the claim or assertion that the guaranty was not executed or entered into at the same time the lease was executed. The date of the guaranty was left blank, but Mrs. Cunningham, who was then in life, testified that she was present when the guaranty was signed by defendant; that the lease had not been delivered; that she would'not give the lease until he signed the guaranty; and that the whole transaction was done at the same time and place. The defendant testified that Me-[37]Bride, the lessee, was his son in law; that he went to the office when the paper was executed, at McBride’s request, to become security for him upon the lease, and that he did it to help him, and that he did not know whether the lease had been delivered at that time, or not; and that McBride was then in possession of the leased premises. Upon cross-examination he admitted that he did1 not know whether McBride was in possession, or not, but supposed he was, while Eichard Cunningham testified positively that the lease was not delivered, nor McBride let into possession, until after the guaranty was executed by defendant. The guaranty was therefore good, under section 2792 of the Civil Code.