(185 P.)

(43 Cal. App. 465)

Manley v. Berman, 60 Misc. Rep. 91, 111 N. Y. Supp. 711; Ranger v. Bacon, 3 Misc. Rep. 95, 22 N. Y. Supp. 551; Wallace v. Dinniny,

SALOMON v. CAWSTON OSTRICH FARM. (Civ. 3043.)

(District Court of Appeal, First District. Di-11 Misc. Rep. 317, 32 N. Y. Supp. 159; People

vision 2, California. Oct. 8, 1919. Hearing Denied by Supreme Court Dec. 4, 1919.)

1. GUARANTY 27-STRICT CONSTRUCTION OF

GUARANTY OF LEASE.

The obligations of a guarantor, as a lessee who assigns and guarantees that his assignee will pay rent, are strictly construed.

2. GUARANTY 50-RELEASE OF GUARANTY

OF LEASE BY ALTERATION OF PREMISES.

Where the lessee of a store assigned the lease, guaranteed the payment of rent by the assignee, and, after a second assignee was in default, the lessor took possession and subdivided the store so as to lease it as two, the original lessee was released from its liability as a guarantor by the change made in the subject to which the guaranty applied, and was not liable to the lessor for the difference between the specified rental and that raised from other ten

ants.

v. German Bank, 126 App. Div. 231, 110 N. Y. Supp. 291; Zinwell Co. v. Ilkovitz, 83 Misc. Rep. 42, 144 N. Y. Supp. 815. The respondent prosecutes no cross-appeal from the judgment. It is therefore unnecessary to consider any change in the legal status of the parties which may have resulted from a later express guaranty by the respondent of the performance of the conditions of the lease by the first assignee. The lease provided that, in the event the landlord should take possession of the premises by summary proceedings after the default in rent, he should relet the premises or any part thereof, and the lessee should pay the difference between the amount of rent reserved in the lease and that collected as rent of the demised premises.

In October, 1914, Mrs. Cohen having defaulted in the payment of rent the landlord took possession under summary proceedings. Prior to that time, at the instance of Mrs. Co

Appeal from Superior Court, Los Angeles hen, he had unsuccessfully made some atCounty; H. T. Dewhirst, Judge.

Action by W. J. Salomon against the Cawston Ostrich Farm, a corporation. Judgment for plaintiff for less than claimed, and he appeals. Affirmed.

Bond & Babson, of New York City, and Wm. F. Craig, of Lynn, Mass., for plaintiff. Donald Barker, of Los Angeles, and Arthur R. Smiley, of New York City, for respondent.

tempt to rent the premises as they were. After taking possession, he made no effort to

rent the premises as a whole, but removed the entire front, and by the removal of the two pilasters increased the glass area 4 or 5

feet in width. He also divided the store in two by a longitudinal partition 2 inches thick and put two doors in the front instead of one, thus changing the demised store into two new stores, each somewhat less than 81⁄2 feet wide. None of the changes were made because of needed repairs or for the preservation of the premises.

The plaintiff took possession about November 1st. The changes were completed about November 15, 1914. Neither Mrs. Cohen nor the defendant had any knowledge of, or consented to, the changes.

BRITTAIN, J. The plaintiff and appellant sued the defendant as a grantor of a lease made and performable in New York. The trial court rendered judgment for the plaintiff for $2,197.48, the unpaid portion of rent for the month of October, 1914, with certain surcharges. The appellant maintains the judgment should have been for $6,045.36, to include the difference between the rentals specified in the lease and that received between November 1, 1914, and April 1, 1915. The appellant leased to the respondent, a California corporation, for five years, the most northerly store and basement thereunder, on the Fifth avenue side of the Bristol building, at Fifth avenue and Forty-Second street, in New York. The single store was 17 feet wide. The front of the store consisted of the show windows and entrance, with two stone pilasters. The lease was assigned by the California corporation to a New York corporation of a similar name, and by the lat-premises were more valuable for rental purter to a Mrs. Cohen. The landlord consented to each assignment. The trial court accepted the views of the appellant, based on decisions of the New York courts, that the original lessee was the guarantor of each assignee successively for the rents reserved in the lease.

It was found the plaintiff used due diligence in his efforts to obtain a tenant or tenants, and that he did relet the said premises for sums segregated between the two new tenements for various terms between November 1, 1914, and the end of March, 1915. It was further found that the plaintiff thought two smaller stores would be more rentable than one large store. Upon conflicting evidence, the trial court found that certain affirmative allegations of the answer were true. Among these were that by the alterations the premises were so changed that they were not adapted to the use of one tenant; that the

poses and more readily rentable as one store than as two; and that, if the alterations had not been made, the plaintiff could have obtained in the reletting an amount of rental equivalent to the rental payable under the lease. There was sufficient evidence to sus

(185 P.)

tain these findings. Upon them the trial | landlord sought to recover the deficiency of court concluded that by the summary proceed- rentals for the period of six months. The arings and the subsequent acts of the plaintiff gument, based upon the profits made by the the lease was terminated, and that the plain- landlord after the expiration of the six tiff was entitled to recover the net amount of months, does not tend to show that he might rents, with surcharges unpaid for the month not have rented the premises originally deof October, 1914, in which the plaintiff re- mised for an amount equivalent to the reservsumed possession. The implication necessari- ed rentals during the six months. The findly follows that the plaintiff was not entitled ing of the trial court upon this subject is to the difference between the rents collected conclusive of the appellant's claim in this reand those reserved in the lease after the lease gard. The utmost the respondent did was to was terminated. The only real question pre- guarantee the deficiency of rentals of the sented on this appeal is whether or not, de- subject of the original lease. In New York, spite the evidence and the findings, the con- as well as in California, the obligations of the clusion of law upon this subject was correct. guarantor are strictly construed. Any change The appellant contends that, since under made by the person to whom performance is the lease he had the right to relet the premis- due in the subject to which the guaranty apes in whole or in part, he had the further plies, without the knowledge or consent of the right to divide them into two stores. He re- guarantor, releases the latter. Page v. Kreklies upon the doctrine announced in New ey, 137 N. Y. 307-314, 33 N. E. 311, 21 L. R. York: A. 409, 33 Am. St. Rep. 731; City of New York v. Clark, 84 App. Div. 383, 82 N. Y. Supp. 855; Wilkesbarre Realty Co. v. Powell, 86 Misc. Rep. 321, 149 N. Y. Supp. 209. The judgment is affirmed.

"The spirit of the agreement required him to lease again the same subject which he had demised to the first lessee. If he elected to make it more valuable, it was without any authority from the lessee or his surety, the defendant. They cannot complain, as they are not prejudiced by the improvements; and, if they are benefited by them, it is an advantage which the plaintiff has chosen to confer upon them without any agreement or obligation on their part to reimburse him." Hackett v. Richards, 13 N. Y. 138; McCready v. Lindenborn, 172 N. Y. 400, 65 N. E. 208.

[1, 2] The respondent maintains that its obligation as a guarantor could not be extended beyond the terms of the guaranty. Under the New York rule, as announced in the quotation just made, the agreement required the landlord to lease the same subject which he had demised to the first lessee.

In the present case the landlord entirely changed the identity of the premises demised to the first lessee and created two new tenements. Under the New York case it was held that the lessee and his guarantor could not complain because they were not prejudiced by the improvements to the original premises. In this case the trial court found that the guarantor was injured by the changes which had been made, because the premises thereby became less rentable, of lower value, and incapable of being rented as a single tenement. The appellant argues that the finding of the trial court is not supported by the evidence, because under the present lettings the rentals are $20,000 per annum or $2,000 a year higher than the highest rentals reserved in the original lease. The lease provided that, if increased rentals were collected, the excess over the reserved rents was to be divided between the lessee and the owner; but the owner reserved the right at any time within six months, by notice, to deprive the lessee of the benefit of this clause. In the present case the

2. JUDGMENT 159-SETTING ASIDE DEFAULT;

STATEMENT OF DEFENSE INSUFFICIENT AS A
CONCLUSION.

Statement in affidavit tendered in support
of application to set aside default judgment
that defendants' counsel, after facts had been
fully and fairly stated, advised that defendants
had a good and substantial defense on the mer-
its is the mere statement of a conclusion of
counsel, and not a prima facie showing of a
good defense on the merits.
3. PLEADING 416-ORDER OVERRULING DE-

MURRER; FAILURE TO MOVE FOR VACATION.

To have order overruling demurrer to complaint set aside, counsel for defendants should have applied to the court by motion after notice to counsel of adverse party. Rev. Codes, § 6589.

4. APPEAL AND ERROR

~1074(1)-HARMLESS ERROR IN SETTING ASIDE DEFAULT JUDGMENT.

Order setting aside default judgment on insufficient showing of good defense to merits

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

WITHOUT JURISDICTION SUBJECT TO ATTACK
AT ANY TIME.

will not, where facts alleged in complaint do 12. JUDGMENT 489-DEFAULT JUDGMENTS not make out a case upon any authorized theory, be reversed on appeal, though contention that court had no jurisdiction to render judgment was not made in the court below.

5. JUDGMENT 489-COLLATERAL ATTACK ON

VOID JUDGMENT.

When the judgment roll upon its face shows that the court was without jurisdiction, the judgment cannot be enforced, and all proceedings founded upon it are invalid and ineffective for any purpose, and the judgment is open to collateral attack.

A default judgment, rendered by a court not having jurisdiction, is subject to collateral attack at any time when it is sought to be made the basis of a right, since the record itself in such case discloses the infirmity, in view of Rev. Codes, § 6719, as to judgment by default. 13. PLEADING 312 — ALLEGATIONS INCON

SISTENT WITH CONTRACTS ΤΟ BE DISRE-
GARDED.

In determining sufficiency of complaint based on contracts to support default judgment,

6. JUDGMENT 27-VOID JUDGMENT CANNOT such allegations as are inconsistent with or

BE VALIDATED.

Where judgment roll shows upon its face that court had no jurisdiction to render judgment, affirmance of the judgment on appeal cannot make it valid, nor can the Legislature by curative statute give it life or force.

PRESUMPTION

7. PLEADING 34(7)
CHALLENGING COMPLAINT ON APPEAL.

ON

contradictory of the contracts must be disregarded as immaterial.

14. VENDOR AND PURCHASER 114-ESTOP

PEL TO RESCIND FOR FRAUD.

Where purchaser after she knew of false representations as to boundaries, situation of lands, number of acres of grain, etc., entered into an agreement with vendors that deficiency should be made up by defendants by giving her When the sufficiency of a complaint is chal-credit and later by a supplemental contract lenged for the first time on appeal, the objec- ratifying the original contract, and recognized tion that it does not state a cause of action is it as in full force, she cannot rescind on the regarded with disfavor, and every reasonable inference will be drawn from the facts stated ground of false representations and recover payments already made. necessary to uphold the complaint.

8. JUDGMENT 101(1) PLEADING TO SUPPORT DEFAULT JUDGMENT.

A default judgment will not be held void though the statement of the cause of action may be so defectively made that it would have been open to general demurrer, provided its direct averments necessarily imply or reasonably require an inference of the facts necessary to supply the defect.

9. COURTS 1-"JURISDICTION" DEFINED.

Jurisdiction is the power to hear and determine the particular case presented for consideration, and to render such a judgment as the law authorizes in that case.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Jurisdiction.]

15. EVIDENCE 84-INDEBTEDNESS NOT MENTIONED IN LOAN TRANSACTION PRESUMED NOT TO EXIST.

Since it is contrary to experience and observation that one to whom another is indebted will borrow money from his debtor on his promise to repay him and at the same time make no mention of debt claimed to be due from the debtor, the presumption arises that the lender is not indebted to the borrower. 16. EVIDENCE 442(6), 462 PAROL EVIDENCE; PRESUMPTION THAT WRITING EXPRESSES ALL ENGAGEMENTS.

Recitals in supplemental contract for purchase of ranch and certain personal property thereon that the purpose was to allow the purchaser ample time to make payments precludes the idea that there was any other purpose, and since the complaint contains no allegation impeaching this agreement on the ground of mistake or imperfection (Rev. Codes, § 7873), the presumption is conclusive that the writing exWhile the district court is a court of gener-pressed all the engagements then made by the al jurisdiction having power to hear and deter- parties. mine all classes of cases except petty cases 17. PLEADING

10. PLEADING 18 COMPLAINT STATING CAUSE OF ACTION NECESSARY TO JURISDIC

TION.

17-VAGUENESS OF ALLEGA

of which justices of the peace and police courts TIONS AS TO ANNULMENT OF CONTRACT. are by Const. art. 8, § 11, given exclusive cog- In action by purchaser of ranch lands and nizance, it can acquire jurisdiction of a partic-personal property used in connection thereular civil case only by the filing of a written complaint (Rev. Codes, § 6513), which besides the formal part must contain a statement of the facts constituting the cause of action in ordinary and concise language (section 6532).

11. JUDGMENT 18(2)-MUST BE SUPPORTED BY SUFFICIENT PLEADING.

If plaintiff's pleading is insufficient to put the defendant in the wrong, the court cannot grant redress and a judgment based upon such a pleading is invalid.

with, to recover money paid, averment that in an action against plaintiff's agents vendors alleged that contract had been canceled and annulled is not tantamount to an allegation that vendors in fact canceled or annulled the contract.

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by Sara A. Crawford against Allen Pierse and another, copartners doing busi

(185 P.)

ness under the name and style of Pierse & make an order reinstating the demurrer for Poetter. From an order setting aside judg- argument. This request was made of the ment entered upon defendants' default, plain-judge at his chambers. The judge promised tiff appeals. Affirmed.

to make the order. Later and before the time for answer had expired, Mr. Belden spoke to the judge on the street near the Belden & De Kalb, of Lewistown, for re- the clerk to enter the requested order. The courthouse, who again promised to direct