Dufau v. Wright — 25 Wend. 635

Majority

p. 484

*Dufau vs. Wright.

Headnote

Oyer must precede the matter of defence whether that be by plea or demurrer ; and regularly it should precede the entry of imparlance. A party cannot, after interposing a general demurrer to the whole declaration, crave oyer, set forth the deed, and then assign special causes of demurrer to one of the counts.

It seems that when premises are demised for one year, with the privilege to the tenant to continue in possession four years longer at the same rent, and the tenant avails himself of the privilege, that the guaranty of a third person for the payment of the rent would be held to be a continuing guaranty during the possession of the premises by the tenant.

Error from the New-York common pleas. Wright sued Dufau in an action of covenant, and stated in the first count of his declaration, that by a certain indenture of lease made between himself of the first part, and J. H. Marais and P. A. Aubin of the other part, bearing date 19th March, 1835, he demised certain premises to Marais and Aubin, for the term of one year from the 1st May, 1835, at the yearly rent of $225, to be paid quarterly; with the privilege of keeping the premises at the same rent, and on the same terms and conditions in the said indenture, in writing, mentioned, for four years from the first day of May, 1836, with the same surety as mentioned in the said indenture in writing. He also stated that by the said indenture .the lessees covenanted to pay the rent as above mentioned; and that on the day of the date of the indenture, Wright, (the defendant in the cause,) by a deed-poll in writing, under his hand and

p. 485

seal, in consideration of the letting of the premises, and of the sum of one dollar, became surety for the punctual payment of the rent and performance of the covenants in the indenture of lease, mentioned to be paid and performed by the lessees; and if default should be made therein, he promised and agreed to pay to the plaintiff such sum or sums of money as would be sufficient to make up such deficiency, and fully satisfy the conditions of the lease, without requiring any «notice of non-payment or proof of demand being made. The plaintiff then avers that on the first day of May, 1835, the lessees entered and became possessed of the *demised premises, and by virtue of the lease, and of the priv- [ *637 ] ilege therein contained of keeping the premises for four years, fc., continued in possession until the first day of May, 1840, on which day two quarters rent accruing on the first day of November, 1839, and on the first day of May, 1840, remained due and unpaid ; and so the defendant had broken his covenant. The declaration contained a second count, stating the lease to be for the absolute term of five years, and in all other respects corresponded with the first count.

After setting forth the declaration, the record contains an imparlance to a certain day, at which day came the parties, and the defendant puts in a demurrer to the whole declaration, and assigns various causes of demurrer to the first eount. Then follows a prayer of oyer of the indenture and deed, poll set forth in the second count of the declaration, and the same are enrolled ; after which the record proceeds thus : “ And the said defendant, according to the form of the statute in such case made and provided, states and shews to the court here, the following causes for demurrer to the second count of the said declaration, jFirst,” &c. (setting forth various causes of demurrer.) Next follows a general joinder in demurrer, and judgment thereupon in favor of the plaintiff. Subsequently the plaintiff’s damages were assessed under a writ of inquiry, and final judgment rendered. The defendant sued out a writ of error. '

N. P. O’Brien for the plaintiff in error.

N. Chase, for the defendant in error.

By the Court,

We must decide this case without reference to the lease and deed-poll set out in the record by the defendant, as a general demurrer has been put in to both counts without any prayer of oyer. The lease and deed-poll are not properly before the court. 1 Chitty, 415,16 ; 4 Dallas, 436. This we have repeatedly held.

The prayer of oyer, and setting forth the lease and deed-poll preceding the specification of causes of demurrer to the *second [ *638 ] count is irregular and nugatory. The oyer must precede the matter

p. 486

of defence whether that be by plea or demurrer. Regularly it should precede imparlance, but there are precedents which sanction the practice of the entry after, 1 Sound. 3, and 289 ; but if intended to be used by the defendant, it must be brought upon the record before demurrer or plea, so that any discrepancy between it and the declaration, or additional provisions in the instrument may appear, and be reached by the demurrer, or form the subject of the plea.

Mow, upon this view of the pleadings, and the only correct one that can be taken, it is quite clear that the judgment below should be sustained. The only ground of objection to the liability of the defendant, of even any plausibility, is, that upon a reasonable construction of his covenant of suretyship, it cannot be extended beyond the term of one year, as that is the only absolute period fixed in the lease; the continuance beyond depending upon the option of the lessees. Were it necessary to express an opinion upon this question, I think we should be bound to regard it as intended to be co-extensive with the right of occupation by the lessees. The words are broad and unqualified, that he will become surety for the punctual payment of the rent, and performance of the covenants in the lease, to be paid and performed by the lessees, and pay the plaintiff such sums of money as will bo sufficient to make up any deficiency, and fully satisfy the conditions of the lease Without previous notice or demand.

But be this as it may, the second count sets out the lease as for an absolute term of five years from the 1st May, 1835, which avoids this question, and places the case upon a footing that it is impossible to entertain a doubt as to the application of the guaranty or liability of the defendant thereupon.

Judgment affirmed.