Sagal v. Mann , 89 Conn. 576 ( 1915 )

The defendant claims that by the permission to sublet there was a radical and fundamental alteration of the contract between the original lessor and lessee, which discharged the defendant as guarantor from the payment of the rent. Some courts hold that, although departures from the principal contract, or changes in its terms, are not of a material nature, the guarantor will be released; but the weight of authority requires that such changes should be of a material and substantial character to discharge him. 20 Cyc. 1444, 1445.

In the present case there was a provision in the original lease that the lessee might assign or underlet with the written consent of the lessor. The defendant was bound to know of this when he executed the guaranty. The written permission or consent to sublet contained a provision to the effect that Jacob Mann was to remain liable for the payment of the rent notwithstanding the subletting. It is true that the sublease did not mention the restriction relating to automobiles. The written consent also set forth one or two unimportant stipulations which were not set forth in the original instrument; but the responsibility of the guarantor was not in any way extended or enlarged by the agreement to underlet; it remained in the precise terms it was before the subletting occurred. The obligation to pay the rent for which this action was brought was not in letter or spirit changed by this transaction, nor can it be claimed that any right of the defendant was altered or impaired by the permission to sublet which was made with Jacob Mann.Benjamin v. Hillard, 64 U.S. (23 How.) 149, 165,16 L. Ed. 518, 521; Jones v. Hoyt, 25 Conn. 374; Lowry v. Adams, 22 Vt. 160; Bothfeld v. Gordon,190 Mass. 567, 572, 573, 77 N.E. 639; 8 Modern American Law, p. 80. The court below, in sustaining the claim of the plaintiff, simply held the defendant to the responsibility which was plainly expressed in his guaranty, and which was not in any manner affected by the transaction relating to the subletting of the premises.

To sustain his contention upon this branch of the case, the defendant relies upon the cases of Rowan v.Sharps Rifle Mfg. Co., 33 Conn. 1, Chester v. Leonard,68 Conn. 495, 37 A. 397, and State v. Spittler, 79 Conn. 470,65 A. 949. The questions in those cases were radically different from the question in the case now before us. It appears that in the first two of these cases there were important and material changes which destroyed the identity of the contract of guaranty.State v. Spittler was dealing with a joint and several bond which was given for two temporary receivers. One of these was afterward made permanent receiver. This action was brought against the surety of this bond for the misconduct of the permanent receiver after his appointment to this position. Aside from this, the bond in the Spittler case was given for the honesty and fidelity of persons acting in a fiduciary capacity. It is said in the Spittler case that it is easy to understand that one might be willing to become surety for the faithful execution of a trust of two persons acting jointly, when he might be unwilling to accept that responsibility for one of them acting alone. The obligation in the latter case might be much more serious than in the former. It is of importance to notice that the guaranty in question is a general one, in that it was not made with any particular person. A guaranty of this character runs with the instrument upon which it is made and to which it expressly refers.

There is no merit in the contention of the defendant that the plaintiff should have made application of the different payments which were made to him by Jacob Mann, to the claim now under consideration. Where a debtor directs the manner in which his payment is to be applied, the creditor, if he accepts the payment, must apply it accordingly. As a general rule, where there are two or more debts, and a payment is voluntarily made by the debtor without any instruction as to its application, the creditor may apply it to whichever debt he pleases. The creditor may, under similar circumstances, apply it to an unsecured rather than a secured claim, or to a claim without a lien instead of a lien-claim. Lewis v. Hartford Silk Mfg. Co.,56 Conn. 25, 12 A. 637; 30 Cyc. 1233, 1234.

The defendant insists that the plaintiff cannot recover, as there was not any privity of contract between the plaintiff and the defendant, as the contract of guaranty was a personal one between Rose A. Ward and the defendant. There is no ground upon which this contention can be supported. The rent due for the use of the premises was an incident to the reversion and was carried with it. The plaintiff, by force of the conveyance of the property to him by Rose A. Ward, had the right to recover in his own name all rent which became due and payable subsequent to the conveyance of the property to him. The defendant, by payment of rent to the plaintiff under the terms of the lease, recognized the plaintiff's title. This right of a lessor to recover rent of the assignee of the lease is founded, not on contract, but on privity of estate. It is a general proposition, which has but few exceptions, that the transfer of a reversion carries with it the rent due and accruing thereafter by the lease creating the term, whether the assignment be by deed or mortgage. In a like manner, the plaintiff took the guaranty as an incident to this right to recover the rent. 2 Daniel on Negotiable Instruments (6th Ed.) § 1777; McLaren v. Watson, 26 Wend. (N. Y.) 425, 37 Amer. Dec. 260; Stillman v. Northrup, 109 N.Y. 473,17 N.E. 379.

It is stated in Allen v. Culver, 3 Denio (N. Y.) 284, that "where a surety of a lessee by a separate covenant guarantees the payment of the rent and the performance of the covenants of the lease, such separate covenant passes to the grantee of the reversion, and enables him to maintain an action against the surety in his own name for a breach of his covenant." It follows, therefore, that the trial court properly directed a verdict for the plaintiff.

There is no error.

In this opinion the other judges concurred.