Roberts v. Willink , 21 Ga. 97 ( 1857 )

By the Court.

McDonald, J.

delivering the opinion.

This case depends on the construction which ought to be placed on the covenants in the lease. The lease was assigned ; and the question is whether the defendant in error was bound to receive the notes, with good endorsers, tendered by Roberts on or before the first day of August, 1855, for the rent. E. F. Kinchley, the lessee, expressly covenants and agrees, well and truly to pay to H. F. Willink, the lessor, his executors and administrators, the full and just sum of two thousand dollars per annum, during the time covered by the lease, in equal quarterly payments of five hundred dollars. He was bound by this covenant, notwithstanding the assignment of the lease. Auriol vs. Mills 4 Penn. Rep. 94.

The defendant covenanted to renew the lease, upon the same conditions and covenants as in that lease contained, for each and every year, for the term of five years next succeeding the first day of November, eighteen hundred and fifty-one, provided nevertheless, that the said Edward F. Kinchley should, on or prior to the first day of August, in each and every year of the five years, offer to the said Henry F. four promissory notes, with good and sufficient endorsers thereon, for five hundred dollars each, payable on the first day of February, May, August and November, respectively, of the year next ensuing, said promissory notes, being the annual rent of two thousand dollars due and payable as aforesaid. The only objection to the tender was, that the notes tendered were not the notes of E. F. Kinchley.

[1.] The contract must be construed by the words, unless there be some reason for taking the case out of this first great rule for the construction of contracts. Both parties have signed the lease, and the covenant of Kinchley is “ to offer” to Willink four promissory notes with good and sufficient endorsers thereon, fyc. Willink covenanted, on his part, upon such offer, to renew the lease upon the same conditions and covenants as were contained in the original lease. The lease was assigned and the assignee, standing in Kinchley'"s place, entitled on the one hand to the benefits, and on the other subject to all the liabilities of the covenants in the lease, offered four promissory notes with good and sufficient endorsers thereon, and claimed a renewal of the lease. Here was a literal compliance with the terms of the covenant. But it is insisted that Willink was entitled to Kinchley’s notes endorsed &c. Kinchley did not covenant to make and offer, nor to offer his four promissory notes. There may have been good reasons why he did not so stipulate, aird there are,, appareut on the face of the lease, good reasons why Willink did not require it, for he had the personal guarantee of Kinchley in the express covenant in the lease, and he had the power to require notes with good and sufficient endorsers.

[2.] It is sufficient, however, to say, that it was the contract of the parties, as we have shown, and we have no power to interpose terms which impose obligations not warranted by the contract as expressed.

Let the Judgment of the Court below be reversed.