Coleman v. . Wade

6 N.Y. 44

• Court: New York Court of Appeals
• Decided: December 5, 1851
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The lease between Coleman and George Wade, provides for the payment of the last quarter's rent on the first of November, 1844.

The defendants, as sureties for George Wade, guarantied the payment of the rent in the manner specified in the lease, and the performance of all other covenants upon the part of their principal.

On the 18th of October, 1844, the lessor and lessee entered into bonds to arbitrate, as to all matters between them, arising out of the demise, and the arbitrators awarded $269,94, in full satisfaction of all rent due to, and including the first day of August, 1844, and all damages up to the 10th October of the same year, to be paid by the lessee, on or before the 10th day ofNovember, 1844. By the terms of the lease, the lessee was bound to pay his rent on the 1st of August, and the damages for breach of his covenants, as they accrued during the continuance, and at the close of the term. These provisions were so far modified by the award, as to be paid in a gross sum, on the 10th of November. This was a change of the contract, in a material matter, competent for the parties to make, but which discharged the sureties of the lessee. The last quarter's rent was paid as proved by the receipt of the lessor, on the first of November, 1844.

The arbitration discharged the sureties from all obligation for the rent, prior to the first of August, even if their undertaking is considered as divisible, and that the award extinguished, as to them, the rent only, which was therein specially provided for.

I think the nonsuit right, and that the judgment should be affirmed.