Meek v. Frantz , 171 Pa. 632 ( 1895 )

Opinion by

Mr. Justice McCollum,

The plaintiff leased to John J. Bieber & Co. from April 1, 1890, to March 31, 1893, “ a certain lot of ground, with dwelling house, store room, stable, shed etc. erected thereon,” and was to receive for the same an annual rent of one hundred and seventy-five dollars, ninety dollars of which was payable on the first of April and the balance on the first of .October of each year of the term. In a separate writing upon or appended to the lease the defendant in this suit agreed to be responsible to the lessor or his assigns for the faithful performance by the lessees of their contract. This writing was under seal and attested by two witnesses, and it appeared on its face that the agreement embraced in it was “ for value received.” The lessees abandoned the demised premises at the end of the first year and this suit was brought against their surety to recover the rent which by the terms of the lease became due on the first of April, 1891. The defendant says that he ought not to be held liable on his agreement because there was no consideration for it; he understood the lease was for one year only, and he was induced to become surety by the false representation of the lessor that the lessees desired him to do so.

We think it is clear that so much of the defense as involves a reformation of the lease and alleges want of consideration for the defendant’s agreement must fail. The evidence is not sufficient to change a lease for three years into a lease for one year. Bieber could have read the lease before signing it, and according to the testimony of the lessor did read it before he executed it. True, Bieber denied having read it but in his denial he was not directly corroborated by a single witness. The defendant’s impression that the lease was for one year was not justified by anything the plaintiff said to him when he became surety, and it afforded no support to Bieber’s claim that he signed the lease without reading it.

If the-defendant voluntarily executed the agreement on which this suit is based, and there was no fraud practiced in obtaining it, mere want of consideration for it will not constitute a defense. There is a well settled distinction between cases in which a valuable consideration was intended to pass, and therefore furnished the motive for entering into the contract, and cases in which such consideration was not contemplated by the parties. In the former, failure of consideration is a defense although the contract is under seal, while in the latter equity will not relieve against'an instrument under seal, merely on the ground of want of consideration: Yard v. Patton, 18 Pa. 278. This rule appears to be as applicable to the obligation of the surety as to that of the principal. We think therefore that the material and controlling question in the case is whether the defendant was induced to become surety for the lessees by the false and fraudulent representation of the plaintiff that it was their request that he should do so. In considering this question it will be observed that the plaintiff admits the agreement of suretyship was written by him before he called upon Bieber to sign the lease, and that after, and on the day. Bieber signed it, he sent for the defendant and requested him to become surety for the lessees. He denies that he told the defendant the lessees desired that he should become their surety and authorized him to say so for them, or that there was any conversation between him and Bieber when the lease was signed respecting an application to. the defendant to become surety upon it. The latter testified distinctly that the plaintiff told him it was Bieber’s request that he should sign the agreement. Bieber testified on this point as follows: “ He (Meek) asked me to allow him to tell my brother-in-law (Frantz) for me that I wanted him to sign the lease for me, to go my security; I told him that he should not do so, that if I wanted any one for my bail I would ask them myself, and more than that he still continued to ask my permission to let him go and ask Mr. Frantz, and I positively refused to do so.” This conversation was in the schoolhouse at the time the lease was signed, and Bieber’s account of it is well sustained by the testimony of Harry Dark who was present and heard it. Upon the evidence thus summarized the question whether the plaintiff made a false representation which induced the defendant to become surety for the lessees was clearly for the jury. It is a mistake to suppose that an affirmative answer to this question involves a reformation of the agreement on which the suit is based, because no one contends for that or suggests that there are any grounds for it. It is conceded that tlie defendant signed it as it is written, and the inquiry arising from the testimony is whether any fraud was practiced or resorted to by the plaintiff in obtaining his signature to it. This is not, as is suggested by the learned counsel for the plaintiff, an immaterial matter. It is important and material as affecting the rights of the defendant, because if he became surety for the lessees on their request they would be responsible to him for whatever sum he was required as their surety to pay to their lessor, and if he voluntarily and without their solicitation or knowledge accepted that position they would not be bound to reimburse him for money paid in discharge of the liability thus assumed. We conclude that upon the evidence in the case the court should have affirmed the defendant’s third point.

We sustain the second, third and fifth specifications of error and overrule the first and fourth.

Judgment reversed and venire facias de novo awarded.