Whiteside v. Connolly

This is an appeal from a judgment entered on a verdict of a jury, and from an order denying a motion for a new trial. The action was commenced to recover the sum of $500 paid by the plaintiff, as guarantor of a lease made by one Julia E. Eldert, to the defendant. The words of the said guaranty were as follows: “In consideration of the above letting, and the cancellation ■ of the lease now held by me, I hereby guaranty, and, in case default is made therein, hereby agree to pay, the rent reserved herein for six months and two days, up to and including January 11, 1897.” The answer denies any knoWledge as to the payment of the rent by the plaihtiff, and alleges that the plaintiff, who was the former lessee of the premises, made certain fraudulent representations as to the number of persons whom he had booked for the season,—the premises being a summer hotel. There was no direct evidence that the defendant asked the plaintiff to become surety on the lease, but there was evidence that Mrs. Elbers refused to execute the lease unless plaintiff signed as surety, and the plaintiff did so sign in the presence of the defendant. This is denied by the defendant, who testified at folio 113 that the guaranty was not on the lease when executed and delivered to him. The question, therefore, as to whether the guaranty was signed by the plaintiff after the lease Vas executed, and without the knowledge of the defendant, or in his presence, and with his sanction and approval, before delivery, was for the jury. The question at folio 70 relating to what might or what might not be made from the business was properly excluded as too indefinite and uncertain. The witness could not give his naked opinion, without a single fact upon which it was predicated. The case presents only questions of fact, and, they having been passed upon by the jury under a fair charge, we think the judgment should be affirmed. Judgment is therefore affirmed, with costs.