Evoy v. Tewksbury

Citations

• 5 Cal. 285
• 1855 Cal. LEXIS 112

Syllabus

<p>A exi'cnted a lease to B, and at the time of the execution, C wrote underneath it, “ 1 hereby agree to pay the rent stipulated above, when it shall become due, provided the said B uoes not pay the same.” Held, that the agreement of C, being added as an agreement running with the lease, and executed at the same time, it must be considered as a part of the lease itself, and not within the statute of frauds.</p> <p>The statute requires the written agreement to answer for the debt of another to express the consideration upon which it is made : but where the agreement is executed at the same time as the lease, and forms the consideration for the execution, it is not a promise to answer for the debt of another, hut must be considered as an original undertaking, and as a promise made, upon the strength of which, another ivas enabled at the time to obtain possession of property, and enjoy its use.</p> <p>Such a transaction is not embraced williin the statute of frauds, as the credit given by file written guaranty of the third party, is the consideration upon which the transaction is closed.</p> <p>A demand of rent at any time during (he term when the same might be due, will be sullieieut diligence to hold a party who has guaranteed its payment.</p>