Stein v. Jones , 18 Ill. App. 543 ( 1886 )

Moran, J.

Whether one who signs a lease, bond, or other sealed instrument, without anything in the writing or method of signing to indicate that he signed as surety and not as a principal, may show by parol that he did sign as surety and to the knowledge of the other party to the instrument, we do not find it necessary in determining this case to decide. We may say, however, that the decided cases appear to give support to the affirmative of the proposition.

Here the evidence offered by the defendant, Stein, to discharge him from liability on the covenant of the lease to pay rent, would not avail for that purpose, had the court admitted the evidence that he was only a surety on the lease or had that fact been expressly stated on the lease itself. It is agreed in the lease, that the party of the second part, nor their heirs, executors or administrators will underlet said premises, or any part thereof, or assign the lease without the written assent of the said party of the first part had and obtained thereto.

This covenant is for the benefit of the landlord and it contemplates that he may consent to assignment of the lease. He did consent in accordance with the implication of the lease, hut-such consent in no way enlarged or affected the liability of Bedord or of Stein under the covenant to pay rent. The lessee, by assigning the lease, whether with or without the consent of the lessor, can not rid himself of his liability under the covenants. A surety is bound only by the terms of his undertaking, it is true, but he will not be discharged by that which does not affect his undertaking. If the term for any cause named in the lease is determined, the surety is discharged from further liability, because the tenant is. Wood, Landlord and Tenant, Sec. 474. A material alteration in the relation of the original parties to each other, without the consent of the surety, will, however, operate as a discharge, as if a lessor enlarges the time of performance or makes a new lease of the premises, either to the lessee or to some other person. Miller v. Steward, 9 Wheat. 680 ; White v. Walker, 31 Ill. 422.

In such case the lease on which the surety became liable is terminated by the altered or substituted contract, but where the alteration is in accordance with the contract which the surety signs, he remains liable. The terms of the lease here implies the right of the lessee to assign by the lessor’s consent.

In Decker v. Gaylor, 8 Hun, 110, the lease was for one year, and the surety signed as security, as appeared from the lease. The lease had a provision in these words: “ This contract is to be renewed for three consecutive years, if it is fulfilled to the satisfaction of both parties.” It was held, that the lease being renewed by the lessor and lessee named therein, the surety remained liable for the rent of the second and third years.

But there is a further reason why, even if what was done by the lessor would discharge the surety, it could not avail in such a case as this in an action at law.

Here the action was upon a specialty, and under the common law rule which obtains in this State a parol discharge can not be set up in an action on a specialty. In Wittner v. Ellison, 72 Ill. 301, it is said: “ The action is brought upon a specialty, and the agreement to extend the time of payment was by parol. By the rules of the common law, when the action is upon a specialty, the surety can not set up a parol agreement to enlarge time without his assent, as a defense. It is peculiarly a matter for a court of equity ; ” citing Davy v. Prendergast, 5 Barn. & Ald. 187 ; Parker v. Watson, 8 Exch. 404; Tate v. Wymand, 7 Blackf. 240; Lock v. United States 3 Mason, 446.

The point made, that judgment was entered by the court below against Bedord as well as Stein, when there was no service on Bedord, can not be urged by Stein. The obligation was several, and a judgment can be taken against one of the obligors only. The judgment against Stein is good, and that it does not bind Bedord does not concern Stein. The person who is injured by the error is the only one who can complain. Robinson v. Brown et al., 82 Ill. 280; Greenman et al. v. Harvey, 53 Ill. 386; 102 Ill. 466.

The judgment of the county court is correct and must be affirmed.

Affirmed.