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of $900 payable monthly in advance in equal payments of $75." This sublease was in the ordinary form; and in addition to the usual covenants and agreements of such instruments stipulated that it was “to hold only to the conditions of original lease."
On February 24, 1910, the plaintiff, for a valuable consideration and with the consent of the defendants, became the assignee of the sublease, and was in the occupation of the space leased thereunder on June 20, 1910, at which time the building was torn down and both the plaintiff and defendants evicted and deprived of possession by the over-landlord.
On June 14, 1910, some thirteen months after the term expressed in the original lease had expired, the month to month tenancy, under which the defendants were then holding, was terminated by due notice to that effect from the owner of the building; and when the work of the destruction of the building was commenced plaintiff's fixtures and furniture were summarily and forcibly removed from the premises.
It is an undisputed fact in the case that neither of the defendants was instrumental, directly or indirectly, in the destruction of the building, and that the eviction of the plaintiff was caused solely by the independent act of the defendants' landlord.
It will be noted that the life of the defendants' tenancy under the original lease was by the very terms of that instrument limited to April 15, 1910, and might have been sooner terminated by an order from the municipal authorities to destroy the demised premises. Notwithstanding this the defendants granted on the twentieth day of July, 1909, and the plaintiff acquired by assignment, the sublease in question for a period of time which on its face extended three months beyond the term granted to the defendants by the original lease.
Out of this situation but one question arises, and that is, Were the defendants, as the immediate lessors of the plaintiff, liable as a matter of law for the admitted damage resulting to plaintiff from his eviction solely at the hands of the over-landlord, merely because they, the defendants, had undertaken to give a sublease to the plaintiff for the full period of a year rather than for the unexpired nine months of the term granted by the original lease?
20 Oal. App.-17
The judgment of the lower court evidently was founded upon the theory that, notwithstanding the defendants' limited and contingent tenure under the original lease, the relation of landlord and tenant existed ween the defendants and plaintiff for the full period of time granted in the sublease; and that this relation, with all of its attendant rights and liabilities, could not be avoided nor in any wise abridged by the fact that the defendants' tenure under the original lease had expired on April 15, 1910, and was from that date by operation of law transformed into a tenancy from month to month, under which the defendants occupied and used the building until the date of its destruction.
This theory, when viewed in the light of the express covenants and conditions of the original lease and sublease, cannot be sustained.
It may be conceded generally that every lease in the usual and ordinary form carries with it an implied covenant that the lessee will not be disturbed in his possession during the term by the lessor nor any other person having the paramount title. This is so, however, only in the absence of a stipulation in the lease to the contrary; and even then this implied covenant of quiet enjoyment ends with the determination of the original estate of the lessee. (Rawle on Covenant for Title, sec. 275; McClowry V. Croghan, 1 Grant (Pa.), 307; Brookhaven v. Baggett, 61 Miss. 383; Maxwell v. Urban, 22 Tex. Civ. App. 565, (55 S. W. 1124); Mershon v. Williams, 63 N. J. L. 398, [44 Atl. 211].)
But however that may be, the plaintiff in the present case took the sublease in question subject to the terms and conditions of the original lease, and therefore the respective rights and liabilities of the parties must be ascertained from a consideration of their agreement and understanding as contained in the expressed covenants and condition of the original and sublease.
It is the duty of a person contracting for a sublease to ascertain the provisions of the original lease; and a subtenant is charged with notice of the existence of the original lease, and is bound by its terms and conditions. (1 Woods on Landlord and Tenant, sec. 93, p. 184; Jones on Landlord and Tenant, sec. 455; Blachford v. Frenzer, 44 Neb. 829, (62 N. W. 1101); Dunn v. Barton, 16 Fla. 765.)
But even if this were not so, the clause contained in the sublease under consideration that it was “to hold only to the conditions of the original lease" was actual notice to the plaintiff of the existence of the original lease; and knowing of its existence he was charged with knowledge of its covenants, conditions, and limitations which, by reference, were made a material part of the terms and conditions of the sublease. (Coalinga etc. Co. v. Associated Oil Co., 16 Cal. App. 361, [116 Pac. 1107] ; Brock v. Desmond & Co., 154 Ala. 634, [129 Am. St. Rep. 71, 45 South. 665].)
The expressed covenants of the original and sublease are obviously opposed to the existence of an implied covenant which was to endure beyond the term granted to the defendants by the original lease.
In short, the sublease expressed the complete understanding and agreement of the parties only when read and construed in conjunction with the original lease; and when so read and construed it is apparent that it was the agreement and understanding of the parties that the term granted by the sublease was not for one year absolutely, but only for that time in the event that the tenancy of the defendants under the original lease was not sooner terminated. (Illinois Starch Co. v. Ottawa etc. Co., 125 Ill. 237, (17 N. E. 486].)
It follows from what has been said that the evidence adduced at the trial does not support the trial court's findings of fact, and that the plaintiff was not entitled as a matter of law to recover for the breach of an implied covenant of quiet enjoyment.
The judgment appealed from is reversed.
Kerrigan, J., and Hall, J., concurred.
(Civ. No. 1099. First Appellate District.—October 30, 1912.] E. LEAN, Appellant, v. LOTTIE P. GEAGAN and M. V.
GEAGAN, her Husband, Respondents. GUARANTY OF SPECIFIED AMOUNT OF GOODS SOLD ON CREDIT_LIMITA
TION OF GUARANTY NOT A LIMITATION OF CREDIT GUARANTOR NOT EXONERATED.-A guaranty of the payment of any goods sold on credit to a third person named, “provided the amount due or to become due shall at no time exceed the sum of one thousand dol. lars,” is a limitation upon the amount of the guarantor's liability for credit, and not upon the amount of credit to be extended to such third person; and any further extension of credit beyond the
amount so limited, does not exonerate the guarantor. ID.-GUARANTY CONSTRUED AS CONTINUING—ADDITIONAL DEBTS IMMA
TERIAL-A guaranty limiting the amount for which the guarantor will be bound, but without limitation as to time, and without cir. cumstances to evince a contrary intention, will, in general, be construed to be a continuing guaranty and operative till revoked. The guarantor will be held liable to the extent of his guaranty, though the principal debtor may have during the existence of the guaranty contracted debts equal to or greater than the sum named therein. The limitation in the guaranty refers to the amount of the guarantor's liability, and not to the amount of the dealing be
tween the purchaser and the one who gives the credit. ID.—CONSTRUCTION OF AMBIGUOUS GUARANTY-PROTECTION OF CREDITOR
-LIMITATION UPON AMOUNT OF LIABILITY-CONDITION.—Any ambiguity in a contract of guaranty concerning the liability of the guarantor, will be resolved in favor of protecting the creditor to the extent of the sum named therein; and the ambiguous provision will be construed as a limitation upon the amount of the guaran. tor's liability, rather than as a condition upon which any liability whatever attaches.
APPEAL from an order of the Superior Court of Alameda County granting a new trial. N. D. Arnot, Judge presiding.
The facts are stated in the opinion of the court,
Barnett Lyon, for Appellant.
Edward A. Holman, for Respondents.
KERRIGAN, J.—This is an appeal from an order granting defendants' motion for a new trial, after judgment for
plaintiff in an action on an agreement of guaranty had been rendered and entered.
On the twenty-fourth day of April, 1908, the defendant Lottie P. Geagan made, executed, and delivered to the Hitchcock-Hill Company, a corporation, a guaranty in the words and figures following:
“GUARANTY. “I hereby request Hitchcock-Hill Company, a corporation, to sell and deliver to W. B. Provan, Colo., County Denver, merchandise as he may from time to time require, and in consideration of such sale and credit extended I hereby guaranty the payment of any and all indebtedness which may hereafter become due from said W. B. Provan to said HitchcockHill Company, provided the amount due or to become due shall at no time exceed the sum of one thousand dollars. This guaranty shall continue until written notice of its revocation is received from said Mrs. Lottie P. Geagan by said Hitchcock-Hill Company."
On the fifth day of May, 1909, and at various dates just prior thereto, the Hitchcock-Hill Company, on the faith of the guaranty, had sold and delivered to W. B. Provan merchandise in the sum of $1,102.39, on account of which $94.69 had been paid, leaving a balance due of $1,007.70. M. V. Geagan is the husband of Lottie P. Geagan, and for that reason is made a party defendant. It also appears from the complaint that prior to the commencement of this suit Hitchcock-Hill Company assigned its claim on the guaranty to the plaintiff. The action is for the amount of the guaranty, i. e., one thousand dollars.
The only plausible theory and in fact the conceded theoryupon which the trial court acted in granting the motion for a new trial was that plaintiff's assignor, in allowing Provan a credit in excess of one thousand dollars, breached the proviso contained in the guaranty that the “amount due or to become due shall at no time exceed the sum of $1,000,” and thereby discharged the guarantor from all liability.
The court at first took the view that this proviso merely limited the amount for which the guarantor held herself responsible; but subsequently on motion for a new trial arrived at the conclusion that it had misconstrued this provision of the guaranty, and that its true meaning and intent was that