Neare v. James — 3 Thomp. & Cook 786

Majority

p. 786

Neare v. James, appellant.

Headnote

Lease—surety upon—counter-claim,.

A guarantor of rent reserved in a lease, held, not discharged from, liability for a breach by the lessee by the failure of the lessor to perform the covenants in the lease on his part. Such failure, however, might furnish the, basis of a counter-claim, on the part of the guarantor, available in diminution of damages, as it grows out of the same transaction.

Appeal from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Charles Neare against Albert A. James upon a guaranty executed by the defendant upon a lease given by the plaintiff to one Dailey of a farm belonging to plaintiff.

J. G. Record, for appellant.

Allen & Thrasher and D. H. Bolles, for respondent.

The opinion reviews the facts and holds that the judgment should, be affirmed upon the grounds stated in the head-note. It is not believed necessary to give the opinion at length.

Judgment affirmed.